Quantum leap: Revolutionising e-disclosure services

Key takeaway points:

1. Control the processes. Legal process outsourcing may create savings on upfront costs, but can lead to a loss of quality control and data protection issues.

2. Hire expertise. Technology is only as good as its operator. Build a team of specialists who understand e-disclosure to bridge the gap between the law, practice and technology.

3. Listen to your clients. Remain flexible and provide a number of e-disclosure solutions to suit individual needs.

 

Tackling huge volumes of electronic documentation in the course of a dispute is a matter of course for many law firms. Long gone are the days when disclosure exercises involved disputes lawyers sitting in front of a pile of lever-arch files, or when electronic disclosure was a novelty and metadata just a fashionable buzzword. Where once we talked about electronic data volumes in megabytes (MB), now it is more common to discuss gigabytes (GB) or even, in very large cases, terabytes (TB).

Every dispute we now handle – whether it is High Court litigation, an international arbitration or a regulatory investigation – will have a significant e-disclosure element. In order to be able to tackle these disputes efficiently, successfully and cost effectively, a sound approach to all aspects of the e-disclosure process is critical.
This article discusses the steps we have taken at Herbert Smith Freehills to tackle the e-disclosure challenge head on.

Rethinking e-disclosure

For well over a decade, Herbert Smith has maintained an internal e-disclosure support function. Originally existing as a specialist team of technologists within the firm’s IT department, the function grew over time to support the needs of fee earners as both the size and frequency of e-disclosure exercises increased.

We have also historically maintained an in-house electronic document review platform, originally Concordance, and subsequently Introspect, although in tandem with these systems we have frequently outsourced both processing ?and hosting of electronic data to a number of external providers.

In all cases, our approach has been to advise clients as to the available options, whether that is an internally or externally-hosted solution, and to make recommendations as to the most suitable option (or options) in each case.

When the time approached to upgrade our existing in-house platform, our thoughts turned to the various software packages on the market.
However, we quickly realised there was a bigger question to be considered: How could we use this opportunity to take a quantum leap in our approach to conducting large scale e-disclosure exercises, in a way that would revolutionise our working practices and deliver real benefits to both our clients and the firm?

As the nature of our work has changed and the size and complexity of disputes has increased exponentially, we have actively pursued a process of continual review and refinement of the working practices in place across the disputes division. This has included:

• ensuring our resource policies are sound so that work is properly allocated across the division and delegated to the most appropriate and cost-effective resources;

• adopting a consistent approach to the estimating and monitoring of costs; and

• ensuring we are making use of the best available software for managing the e-disclosure process and producing trial bundles.

Our experience of successful evolution over this period gave us the confidence that we could develop new practices ?and procedures for fee earners at ?the same time as adopting new and innovative technologies, with a view to transforming our entire approach to the e-disclosure challenge.

The e-disclosure challenge

We realised that the solution to the e-disclosure challenge would need to have three distinct but complementary elements.

First, we wanted a cost-effective solution to the problem of how to conduct extensive manual review exercises (which, despite the use of technology, would always involve an element of human review).

While a typical complex commercial dispute might involve a relatively small core team of partners and associates, the sheer volume of documents to be reviewed in the disclosure phase would often require that team to be expanded to include large numbers of additional fee earners, often ?at junior levels and often for relatively ?short timescales.

Previous approaches adopted across the legal industry had included the temporary recruitment of paralegals or locum solicitors and, increasingly, the use of offshore legal process outsourcing providers that can typically supply large numbers of reviewers at very short notice in other jurisdictions to undertake intensive review work.

Having consulted extensively with our clients on this, we came to the conclusion that neither approach was entirely satisfactory for a number of reasons, primarily due to the fact that involving non-firm resources inevitably risked a loss of control over the quality of work undertaken in a critical part of the disputes process, but also because of the costs, delays and other issues (such as data protection and security) involved in retaining offshore providers.

Second, we knew that technological innovation was crucial. Things move quickly in the technology industry. For example, the simple linear review (where one starts at the first document and continues to the last) traditionally associated with the review of hard-copy documents was quickly replaced with what were then sophisticated e-disclosure concepts such as date range filters, de-duplication and keyword searching, all of which were aimed at reducing the number of documents that would ultimately have to be reviewed by a human reviewer.

Today, we are witnessing the next step change in e-disclosure innovation as the legal world (largely led by the US) starts to embrace technologies like concept searching, intelligent filtering and predictive coding. When we began to look at upgrading or replacing our in-house Introspect platform, these were ideas that were really starting to take hold.

The question we faced was how to best embrace these new technological innovations in a way that would fit with our established business practices and deliver the best results for clients at minimum risk.

Third, we knew that any technology ?is only as good as its operator and, for ?this reason, we needed a first rate e-disclosure support function to work alongside the global fee-earning body ?on all e-disclosure exercises.

Our goal was to ensure that, by establishing a core team of e-disclosure specialists bridging the gap between the law, practice and technology, we could run even the most complex e-disclosure exercises in a robust, defensible, consistent and cost-effective way.

A tripartite approach

In early 2011, we opened a new office in Belfast to undertake intensive document review work. The team in Belfast comprises a mix of qualified lawyers and legal assistants who are fully integrated into the firm’s global workforce.

Herbert Smith was the first international law firm to establish a UK-based operation of this sort. It has allowed us to undertake large-scale document review work at rates substantially lower than those charged for work conducted in any of our offices across Europe, Asia, the Middle East and the US, while retaining complete control over the quality and output of the review team’s work.

Aside from the headline cost savings, the Belfast office brings a number of other benefits to clients, including a highly structured approach to document management and review, the consistent application of robust and standardised quality control procedures and a ?high-quality pool of legal talent in ?Northern Ireland.

On the technology front, we wanted to partner with a company that could meet our technological needs – not only now, but as they develop over time. Any software review platform had to be useable, scalable, innovative and cost effective. Crucially, we wanted to be able to offer clients the option of us undertaking the entire e-disclosure process in-house, without the need (and cost) of involving external providers.

After an extensive period of investigation into available software, we decided to proceed with Recommind’s Axcelerate review and analysis tool. This provides all the core document review and production functionality and also allows us to ingest, process, analyse, review and disclose huge volumes of electronic data entirely in-house.

The system also has advanced analytics tools and predictive coding functionality, enabling a more hands on, proactive approach to early case assessment. Ultimately, this leads to far more effective and efficient filtering, reviewing and searching of data, meaning a smaller, and more tightly focused (and therefore relevant) document set to be reviewed by human reviewers in due course.

Finally, in order to ensure that both the Belfast review service and our new system work seamlessly across our global disputes practice, we developed our existing e-disclosure support function into an enhanced disputes data management (DDM) team.

Based primarily in London, but with a presence in Belfast and plans to place DDM resource in other key locations across our global network of offices, the team works closely with fee earners throughout the lifecycle of electronic document-heavy cases.

The DDM team comprises a core team of specialist e-disclosure case managers, supported by a team of skilled technical analysts, who work together with the relevant fee earners and Belfast team. They manage all aspects of the e-disclosure process, from matter inception through to the identification of data, collection, ingestion, processing, early analytics, detailed review, production and eventually trial.

Revolutionising processes

As a result of our approach, while we are able to conduct the entire e-disclosure process in-house where required, we have retained the flexibility to outsource elements of the process to third-party providers as client needs dictate. In this way, we can still offer clients the full range of e-disclosure solutions.

From a case management perspective, the combination of the new software with the DDM team’s specialist knowledge and experience means that fee earners at all levels are better able to undertake effective early case assessment. This means that key decision makers have a better view at a much earlier stage of the process of the documentation they are dealing with.

At the same time, being able to offer our own bulk document review services at significantly reduced rates while ensuring the quality of the work undertaken – and without the time and expense of instructing third party providers – has revolutionised the way we conduct the entire document review process.

In the eighteen months since the Belfast office has opened, feedback from both clients and fee earners within the global disputes division has been overwhelmingly positive.

Our ultimate goal was to offer a seamless approach to the conducting of large-scale e-disclosure exercises in a way that is process driven while remaining flexible, user friendly, robust and defensible and, ultimately, cost effective for both the firm and clients. We believe that the tripartite approach we adopted to tackle this challenge has allowed us to do just that.

Andrew Moir is a partner and David Phillips is a professional development lawyer in the global disputes practice at international law firm Herbert Smith Freehills (www.herbertsmith.com)