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Just because you're using technology doesn't mean you're using good technology

October 24, 2016  |  9 min read

Transformation

Later this week, Logikcull will be presenting at the inaugural meeting of the San Fransisco chapter of ESI Roundtable. The mission of the grassroots organization is to provide eDiscovery training and workshops with practical content and local networking. It's geared toward reaching legal practitioners who don't typically have access to first-rate technology education -- and we are excited and honored to be involved.

In anticipation of the event, which features presenters from the state judiciary, CNA Insurance, Duane Morris, and Renown Health, we are publishing a conversation we had earlier this month with the group's founder, Melissa Rogozinski. Melissa asked us, among other things, about how to make the transition from a law- to tech-focused practitioner, and how legal professionals should approach selecting the technology they use. Chris Rauen and Robert Hilson of Logikcull participated.

There are limited spaces available for the program, which begins at 1 PM on October 27 and is available for MCLE credit. Looking forward to seeing you there.


Melissa Rogozinski: Chris, you and I have talked a little bit about our previous careers as law firm practitioners. You had an 11-year career in legal, half of which was spent as an associate at an Am Law 100 firm, and now the other half with a technology company. Tell us a little bit about your career as a practicing lawyer and why you chose to take a role with a technology company.

Chris Rauen: Sure. I think a lot of folks coming out of law school and a lot of lawyers are unsure what legal work actually is and what being a lawyer means. It's not something they teach you in law school, ironically enough. So I ended up coming up to Northern California and working as a litigation associate at a couple large firms out here. I liked it, but I realized that the part I liked most was organizing and managing cases, and the part I liked least was arguing and writing briefs. So my skills, it turned out, were not fit for the glamorous work.

I liked the nitty-gritty of making the trains run on time and making everything organized, so I ended up doing a transition after about four years of practice over to the service provider side in eDiscovery. I found I enjoyed eDiscovery. I also brought a little bit extra to the table because I had been the eDiscovery customer for a lot of folks, and now, being the provider, I could anticipate and know what the customers needed because I’d been one.

MR: Chris, can you please talk to our audience about the inefficiencies in traditional document review and ways that organizations can improve.

Chris: So my first job actually, between college and law school, was with legal assistants in rooms filled with paper doing manual document review, flagging things with actual flags, redacting documents and all of that fun stuff. And I think the most important thing for people to embrace with technology is how much technology can make their lives better. And it can make their lives better in two ways.

One is turnaround time. Getting your documents into the hands of the partner or the in-house counsel took a huge effort in the paper discovery days, and you might not ever necessarily find the right documents. They could have slid to the bottom of the box and stuff wasn’t indexed and you’re relying on an army of mostly young folks to go through those documents and read them quickly and find the right ones. So, the use of technology gives you a better chance to actually locate the relevant documents you’re looking for.

"Technology gives you a better chance to actually locate the relevant documents you’re looking for."

And the other thing it does is allow you to do that so much faster. I’ve spent many a late night digging through boxes, looking for that one document that the lawyers swore they saw, and it "looked kind of like this" but "kind of like that." And you’re going to have a much better chance using technology to locate that document than you are flipping through and risking paper cuts and some big boxes.

MR: It’s interesting for me to see in our industry that there still is such a high level of apprehension and fear of using technology.

Chris: Right. But if you think about it, the risks were so much greater before. For instance, in the old days, you were basically holding the entire index for that case in your head. What happens if you get the flu? You’re a paralegal. There’s no backups. There’s a lot of risk for doing things manually. Usually, we’re relying on often very experienced, very talented people but there can be a single point of failure in the case, and that’s a huge risk that people need to acknowledge.

MR: I completely agree with you. And back in the day, we didn’t have a lot of technology or the firms that did were maybe using Summation, but now we’re so far into this. The law has changed twice in the federal system, and most states have adopted their own rules. Now we got states adopting ethical opinion or requiring additional technology.

"Logikcull is one these companies I've seen do a really good job of developing the technology so that it is extremely user friendly and not cost prohibitive."

Logikcull is one of these companies I’ve seen do a really good job of developing the technology so that it is extremely user friendly and it is definitely not cost prohibitive. I tell people it’s actually more cost prohibitive to not deal with it than it is to deal with it, which leads us into the next question with Robert.

Robert, from the perspective of a technology company, why don’t you talk to us a little bit about how technology in litigation and discovery impacts time and cost savings?

Robert: That’s a good question. I guess I'd start by saying that not all technology is created equal. That’s kind of inherent in the conversation you and Chris were having. A lot of legacy tools that practitioners are using today, they’re several generations old. And they were built to accommodate a discovery process that, by its very nature, is tremendously inefficient.  

You and Chris mentioned the example of document review. But also consider, for instance, how data is traditionally processed. You’ve got to collect all these documents, you’ve got to get them on a hard drive, you’ve got to ship it off to the vendor and then they prepare it to load into their system. And then they actually process it and send it back. That's just the processing piece! It's crazy. 

So getting back to the question, at this point, everybody uses technology, Melissa. There’s really no other way to handle discovery and investigations and subpoena response and FOIA and all of that stuff without technology, given the rising volumes of data.

But just because you’re using technology doesn’t mean you’re using good technology or acting efficiently in terms of cost and time savings. So a couple things to consider when you’re choosing which technology to use. First, there are the table stakes things -- the need-to-haves. At the very minimum, the technology needs to be secure; it needs to be usable, meaning it needs to a) work and b) not be so complex that the people with the most legal knowledge of the issues can’t use it; and it needs to give you access to all of the information you feed into it -- meaning the processing engine needs to work in a way that captures all the content you’re putting into the system, and it needs to organize the data in a manner that makes all the information reviewable so you can get to it quickly.

So when you’re looking at technology to do eDiscovery, that’s the stuff you need to have at a very minimum. But beyond that, you should look for a system that defensibly automates -- and I think that’s the key term, “defensively automates” -- the tedious, low value work like the stuff you and Chris were describing. Beyond that, you should look for a platform that’s going to allow you to provide additional value by freeing up the people that would otherwise be doing these menial tasks to do higher value work. That higher value work might be project management for your client, getting deeper insights into the legal issues in the case because you have a better window into the evidence involved, being better prepared for meet-and-confers, that kind of stuff. And I think that’s where organizations and law firms are going to distinguish themselves when they’re using these different technologies.

"You should look for a system that defensibly automates tedious, low-value work and, beyond that, allows you to provide additional value by freeing up resources that would otherwise be doing these menial tasks."

MR: You know Robert, you brought up some interesting points about hosting as we were preparing for this interview. Will you talk to our audience please, because these are really important issues. Talk to us about hosting fees, because like I said, fear of technology and technical terminology in cost has been a big problem with the apprehension with most of our industry. So talk to us about that -- a little bit about when a project goes dormant or say the case has been appealed or if there’s some kind of a stay and the project goes quiet, and certainly cyber security, concerns with hosting.

Robert: When Chris and I were discussing hosting before the podcast, and preparing for the Roundtable, we were like, "You know, what’s to say about hosting?" But I think the things you mentioned are important. So in terms of cybersecurity -- and this is a rule of thumb not just for hosting but for every phase of the process -- wherever the data is, it needs to be secure. So at a minimum, it should be encrypted at rest, ideally at the file level, and however you’re getting the data into the hosting platform, those channels need to be secure as well via encryption. So that’s cyber security at a very high level.

The other issue that you raised is the cost. If you look at, and you can pull this information from state and federal dockets, but if you look at some of these eDiscovery vendor invoices from the last five to 10 years, you’ll notice that a huge chunk of the cost related to eDiscovery and investigations and so forth is related to these recurring hosting fees. Just to give you an example of this, we did an investigation into the eDiscovery costs associated with the George Washington Bridge investigation. This is the big Chris Christie scandal a couple of years ago. But it cost the city something like $1.1 million dollars for all of the eDiscovery and 85% of that was related to the recurring hosting fees.

So, and this gets to the second part of your question, if you don’t have an efficient way of archiving inactive matters so you can effectively turn on and off your access to data, those fees really mount quickly. That’s something practitioners should really be aware of.