This article was authored by Tyler O'Halloran, an attorney at Lloyd Gosselink Rochelle & Townsend in Austin, Texas. It appeared in a truncated form in the January/February edition of the ABA Law Practice Magazine as "Seven Keys to Electronic Data Efficiency."
An explosive increase in ESI, changes in state and federal rules around e-discovery, and the advent of highly intuitive cloud-based tools have converged, creating an opportunity for savvy litigators to maximize their efficiency in dealing with electronic data.
To some extent, this convergence was inevitable in law practice, as evidenced by the progression of intuitive technology in other industries. Remember when the only way to catch a ride while on a business trip was to have your hotel call you a cab? Now your smartphone connects you instantly to low-cost drivers in your area, with almost no limitation on pick-up location. Due to intuitive advances in technology, the traditional barriers to catching a ride have been substantively reduced.
Likewise, smart legal professionals now understand that legal technology has evolved to be equally intuitive and powerful. This gives attorneys and staff better access to discovery data without the additional cognitive burden of mastering a complex software suite. Cloud-based tools lift the limitations on mobility, allow for flexibility when and where billable work may be performed, and provide access that simply can’t be found in traditional in-office technology.
Many states now have rules and procedures that accommodate these realities. And in some states, litigators are now being asked to demonstrate competency in e-discovery in order to litigate. For legal professionals who heed these new developments (I strongly advise that you do and it may not be too long before your state ethics board agrees with me), an opportunity exists to seize the advantage in litigation, especially when facing well-financed opponents. Here are a few practical tips and ideas for litigators looking to gain a tactical advantage by utilizing more efficient technology.
1. Request native files in discovery
Check if your jurisdiction’s rules require the opposing party to furnish native files, and then take advantage of them if they do. The secrets to a data set often lie in the native-file metadata. In some states, new rules for discovery already require that opposing parties furnish native files when asked, and in others, the rule is implicit in that electronic data must be produced “as it is stored in the ordinary course of business.”
Native files may reveal valuable information, and requesting them may catch a less-sophisticated opponent off guard. Assuming you have the right technology, it’s much easier to process, sort, and unlock the secrets of a data set with native files. Email threads, relationships between individuals, and document ownership is simple to establish when you have all the information associated with a file as opposed to just pieces of it.
This becomes especially important when reviewing documents for potential attorney-client privilege. In a non-native format (e.g. a pdf “print out” of an email), a reviewer often can't readily identify third parties on a communication due to the non-native file only displaying a recipient’s name. On the other hand, if your e-discovery solution allows processing and instant access to the native file, that email could be analyzed to pick out the full email address of every participant of an email. Thus, identity of potential third parties that may break attorney-client privilege is established immediately at the point of review, and the risk of inadvertent disclosure of privileged material is reduced significantly.
2. Get educated on your state's discovery rule changes
Discovery rules, at both the federal and state level, are changing to accommodate ESI. Check to see what changes may be applicable to your practice. Not only may you be required to demonstrate knowledge of e-discovery rules, but an understanding of new rules could be used for a tactical advantage.
Too often, attorneys collectively brush these rule changes aside because many of their colleagues have also failed to adapt their practice to modern-day litigation. This creates a gap in the market for those willing to learn, and new forms of e-discovery solutions make it easier than ever to take advantage of that gap.
3. Don't be overly reliant on outside vendors
Investing in expensive e-discovery software and training isn’t required anymore. In the past, using vendors was the solution all of us reached for first when it came to e-discovery. For starters, it made sense to outsource processing and production when the software to perform discovery was too expensive and difficult to install. Vendors also made business sense because they took all the risk with the investment in software and training of personnel - and for most firms there really wasn’t any other way to take on discovery in complex litigations.
"Cloud technology is changing the e-discovery business model. Using a modern cloud-based solution, firms can perform discovery on their own with relatively small investment in software, implementation, and training"
Cloud technology is changing the e-discovery business model. Using a modern cloud-based solution, firms can perform discovery on their own with relatively small investment in software, implementation, and training. Billable work that previously had to be shifted outside of the office can now be kept in-house. And today’s breed of discovery software is much easier to use — ingestion of data, processing, and production creation can now be performed by all staff with minimal training.
4. As much as it hurts to admit, it's time to jump in and learn this stuff
You spent months cramming information in your head to pass the bar exam. So I’m happy to inform you that you are estopped from claiming you can't understand the basics of e-discovery. Fortunately, with a little bit of knowledge and a modern discovery tool, even a technophobic attorney can be quite dangerous with e-discovery. For example, knowledge of how to reduce (or cull) document sets will reduce the size of the documents requiring review, and will substantially lower review costs. If the tools are available to lower the cost of legal services to a client, attorneys have a duty to learn and implement them.
"If the tools are available to lower the cost of legal services to a client, attorneys have a duty to learn and implement them."
Worried about training? Many e-discovery (or Discovery Automation) solutions offer some form of no-obligation free trial. Professionals in modern litigation practice must be willing to explore new technology and teach themselves with the resources available. Do we, as a profession, claim that we have no responsibility to learn the new Supreme Court opinion that came down yesterday? Of course not. Why then do some attorneys refuse to constantly explore and evaluate new technology? When a new user can be up and running in minutes, there should be no barrier to learning e-discovery hands-on.
A good place to start is learning how to “cull” data. It’s pretty common for 50-90% of documents in a review set to be irrelevant. If you can learn how to use advances in technology to filter out those documents, you’ll have a smaller and more manageable review set. In-house legal staffers can greatly reduce review costs by culling the irrelevant docs and sending fewer documents to outside counsel and/or vendors for review.
5. Don't settle for complex technology
With today’s technology, software complexity should no longer be a barrier for attorneys seeking better access to discovery data. All of their knowledge and experience can be brought to bear without wasting time navigating complex (and often outdated) software interfaces. If something appears to be outdated or difficult to use, insist on moving on to a better option. They’re out there, and they’re ready to help you advance your practice.
6. Leverage institutional knowledge in discovery
The biggest disadvantage to working with a vendor may be the fact that the vendor doesn’t know the case like attorneys and staff within your firm do. Processing and reviewing discovery data in-house creates an advantage simply because your team knows what to look for and is less likely to miss or delete a significant detail. Data can be examined by personnel that are informed with intimate knowledge about the case, and the raw data can be re-examined repeatedly without the time and logistical expense of going back and forth with a vendor.
7. Don't limit access to your discovery data
To be truly efficient and productive, legal professionals should be able to shift the time and place where billable work can be done. Have you ever been in a meeting and needed to quickly pull up that one big document you found six months ago?
"To be truly efficient and productive, legal professionals should be able to shift the time and place where billable work can be done."
Your e-discovery solution should allow you to find that smoking gun again from your smart phone in seconds. Has your client ever had questions about how many pages have been reviewed and/or produced? Your e-discovery solution should allow you to pull that data up instantly, anytime, anywhere.
In discovery, working with vendors may limit your time with the data. Having the ability to re-examine metadata in raw files, follow hunches, or scrutinize document sets with extra vigor may give your firm the edge in a case. Your firm can further gain an advantage if your staff has the ability to easily access or return to data previously reviewed.
Accessing your data should never be dependent on where you are. Instead law firms should take advantage of today’s tools that allow location-agnostic and device-agnostic review of discovery documents. This will allow you to get a better understanding of your case without missing out on the ever-coveted billable hour.
Too often, failure to adopt advances in technology is pinned on the training or education required as a barrier to entry. For some reason, the law of inertia seems to be especially strong in the case of attorneys adopting technology to make their practice easier. Maybe it’s because we’re all trained to be risk adverse. Maybe it’s because we like the revenue generated as a result of outdated and inefficient forms of document review. Most would agree that they’ve heard both of those justifications, but I also think most would agree in theory that neither should get in the way of creating the most efficient legal service possible for your clients. Fortunately, we are practicing law in a time where the barrier to entry to new technology is shrinking, if not completely disappearing.
Don’t be a “cab company” law firm. Be the firm that replaces them.
About the author
Tyler O’Halloran is a fourth-year civil litigator with Lloyd Gosselink Rochelle Townsend, P.C. in Austin, Texas. Tyler’s practice focuses on complex commercial litigation, which necessarily includes an active role in e-discovery practices and technology.