Finding Value in e-Discovery: Insights from a Corporate Lawyer



by Sam Bock on February 07, 2019

Community , In-House Counsel , Legal & Industry Education , Litigation Support

The role of the corporate lawyer has been evolving when it comes to e-discovery. Processes are increasingly coming in-house, corporate legal teams are voicing their disappointment when law firms fail to innovate, and they’re getting creative with leveraging legal software in new ways.

At Relativity Fest last year, fireside chats offered a chance for some of the bright minds in the legal world to share conversational, real insights with attendees. In one session, Karl Hennessee—senior vice president of litigation, investigations, and regulatory affairs at Airbus—joined Relativity’s Jeff Seymour to share his perspective on today’s e-discovery landscape.

While Karl noted that his views don’t reflect those of Airbus as a company, his first-hand perspective provided a valuable look at the modern corporate attorney’s desire to balance both the cost and the value of e-discovery done right.  

“There Is Nothing So Expensive as Cheap”

Today, value in e-discovery is less about rock-bottom prices and more about leveraging the right tools and workflows to extract insights from data, meet deadlines effectively, and make the most of technology investments.

“We've been cursed by a culture of cost-driven decisions, but value needs to come up in the conversation much more often,” Karl said. “e-Discovery has been a traditional landscape for so long because it was shackled by people worrying about pricing from case to case, not looking holistically at value over time.”

The fact is, you get what you pay for when it comes to most things—and in the middle of circumstances as high-stakes as litigation and investigations, e-discovery isn’t the place to cut corners.

“There is nothing so expensive as cheap. That's true in e-discovery. When you drive costs to the lowest possible level, you can't complain about high turnover. Or undeveloped dashboards. Or a lack of innovations. Or getting nickeled and dimed for things because your vendor is trying to recoup costs,” Karl emphasized. You can get more out of the process when you invest responsibly.

“When you use providers who focus on innovation, trusted providers—they open up the hood and show you what's underneath, which gives you the ability to think creatively about what you can do next,” he went on. “With a trusted provider, we can say ‘Why don't we take this tech and use it to make something completely different?’”

Karl noted that e-discovery, while expensive and time-intensive, is an opportunity to do legal work right in a big data world. And it’s a trend he sees picking up steam across disciplines in this space.

“I think we're finally going to arrive at the point of conversion once e-discovery gets beyond the point of needing to do everything with the lowest possible price point, but become a value proposition in new ways,” he predicted. “If e-discovery can unlock insights into data patterns, bring down insurance costs, inspire new thinking on our products and services—then it'll become the parlance of the corporate world.”

Why Unique Service Offerings Win the Day

Naturally, service providers and law firms still need a way to differentiate themselves in a highly competitive marketplace. So how might Karl—and other corporate lawyers like him—identify standout partners when they need support on their trickiest projects?

“There are companies who look for a competitive advantage in the blue ocean—where you create your own marketplace and provide value unlike any other offerings—versus the red ocean—where it’s all about finding the lowest cost and fighting to survive in bloody waters,” he explained. “Commoditization for me is a terrible thing. You'd think I like paying low, low prices for the same services, but I don't.”

Again, it comes down to finding value—which is not the same thing as counting pennies.

“The business consequences of bringing prices to the lowest possible level sacrifices innovation to the point that I come to conversations with vendors and I’m the one who has the ideas. That shouldn't happen,” Karl said.

So how can service providers and service-minded law firms up their game and find the strengths they can leverage to win clients?

“You need creative people who have access to RelativityOne and have time to play with it, maybe not immediately billing for it, but coming up with really cool things to do with it that will pay off for the company down the road,” Karl suggested.

The need to innovate is, of course, true of technology companies, too. When it comes down to it, Karl said, “I don't think you can pick winners today based on their size or scale, but on soft factors like their abilities to extend the reach of their tech beyond e-discovery, their willingness to test new innovations with customers before launching them into the market, and their desire to move faster.”

High Bar for Compliance and Security

For both technology and service providers, the baseline for participating in the market—before that differentiation can happen—is meeting the security requirements that protect data and peace of mind for today’s businesses. Compliance with evolving regulations is an important factor in robust data protection, too. This is top-of-mind for many corporations as the move to the cloud continues to gain momentum.

“It's a sensible precaution to discuss with vendors locations of servers, what they do if they receive a subpoena, et cetera—you need to speak up and voice your concerns in the event that data is requested to be given over or is seized. Those are important conversations, and those providing cloud storage solutions should come readily equipped to those questions with acceptable answers,” Karl advised.

Still, Karl conceded, even the best answers aren’t enough for some: “There are also some people who just want to find reasons to say no to the cloud; some people's jobs give them interest in staying on-prem. But ultimately, these folks can tell you they are responsible for securing the data, and that's huge—it's key. If we can find ways to do this, we should do it, because the security of that data being handled is far more important than people give it credit for.”

Additionally, proactively complying with regulations like the EU’s General Data Protection Regulation (GDPR)—rather than testing the waters and risking the consequences—sets responsible providers apart from those that may fall behind.

“The companies who proactively engage with the GDPR and how they can handle it are the ones who will drive change in the industry,” noted Karl, “The ones who only respond to the GDPR in terms of client questions are going to fade away,” he warned.

The reason? Aside from the obvious defensibility advantages, well-educated organizations who act swiftly and confidently when it comes to the regulatory landscape will open the door for innovation and earn a dominant stance in conversations about data protection, privacy, security, and compliance.

“Those who engage early with GDPR and turn the power of technology onto it are going to have power,” Karl predicted. “They're going to build a process, build relationships with regulators, cite precedence where these products were used elsewhere, and so on. They're going to win. The ones who resist this proactive approach will shrivel and die.”

Practical Tips for Today’s Legal Professionals

During the conversation, Karl shared a few nuggets of wisdom for many of the segments of the e-discovery realm.

For example: “Law firms and providers: keep your eyes open and listen to your clients. If you see an opportunity, put some money in it. You might lose a bit, but you could stand to gain a lot,” Karl suggested.

And for corporations: “People trying to sell geographic proximity as a proxy for cultural understanding are not doing their client a service; being there doesn't make them any more compliant with the GDPR,” Karl cautioned. “Focusing on finding a provider who really knows their stuff and can ensure compliance is more important than finding someone who is where you are or where your data is.”

No matter the segment, Karl brought it back to opportunity and encouraged others in the room to do the same.

“Someone once told me ‘Well, I think this data is dangerous. I think we should just delete it.’ And that's true, and just getting rid of it (when it's not under hold) is certainly cheaper than analyzing it for new insights,” he said. “But you're mitigating risks, and yet not achieving any value. So approach it like that: are you focused on mitigating risks at the lowest possible cost, or getting the most value out of this process as possible?”

Sam Bock is a member of the marketing team at Relativity, and serves as editor of The Relativity Blog.

 

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