by Jennifer Johnson – Commonwealth Legal on September 10, 2015
During a time when business buzzwords such as “synergy” and “growth hacking” are inspiring companies across all industries to improve processes and collaborate across business units, e-discovery simply can’t be ignored. Traditionally treated as an ad hoc process requiring loads of time and attention for a short sprint, the fire drill approach to litigation is quickly falling by the wayside as companies seek to mitigate stress, time, cost, and risk by taking a more deliberate approach.
As a Relativity Best in Service Partner in Canada, we’re seeing this shift become the norm. There are a number of factors driving the trend: Canadians aren’t as litigious; litigation stakes aren’t as high; and our legal community is smaller. The combination of factors has a tendency to drive corporate clients’ demand for a more pragmatic approach. The ultimate goal is to keep costs down and take a more strategic approach. Key side effects include streamlining of processes and developing a more collaborative approach.
Ultimately, the goal is that when a matter arises, it’s handled in a more systemized, methodical way. The benefits may be obvious, but the process for establishing better e-discovery workflows unfortunately cannot be canned.
Methodology Becoming Mainstream
The complex and unpredictable nature of e-discovery can make the transition to a more methodical approach quite challenging. One factor is the number of parties involved. On a single project, key stakeholders may include in-house counsel, the external law firm, and a vendor—and that requires a lot of coordination. In our experience, taking a more data-centric approach provides greater insight into the roles and responsibilities and value proposition of each organization as it aligns its business process to the discovery process. Corporations may feel they lose some control when so many cooks are in the kitchen, but it doesn’t have to be that way. In fact, more effective outcomes are attained when the key strengths and needs of each party are aligned to the broader discovery process—and the overarching business goals of the organization.
Technology is at the heart of this dynamic and catalyzes this shift in many ways. Shared access to a single e-discovery platform is just the starting point. As tools such as text analytics evolve and become more mainstream, it’s also becoming easier for corporate clients to access, afford, and mandate those options on the average case. Analytics capabilities in software such as Relativity provide earlier access to key documents, insight into the right strategy, data that helps you determine how—or if—to pursue a matter, and so on. And once there is data transparency, that information can be leveraged to determine the right workflow and roles for each case.
By taking a more strategic approach to the application of technology, corporations can learn how to apply it across different types of matters, position external counsel to strategize earlier on in the case, and leverage service providers to optimize the use of technology from start to finish on these projects.
It doesn’t matter where the technology resides—behind the company firewall or in a managed services solution. The cloud is breaking down these barriers to provide greater ease of access and affordability.
While the standardization of processes is making e-discovery less expensive and reactive for many companies, we can’t expect the same workflow to work every time. Look at things from a people, process, and technology perspective, as each component is critical. e-Discovery is still as much about the people driving a project as it is about the technology that speeds it along.
We also need to pay increasing attention to the fact that discovery is inevitably reaching further upstream. By starting to align information management across your organization, you help open more doors for improvement. Internally, how can corporations align the mandates and skills of their IT, legal, and security teams to make for better information governance—and, ultimately, more effective e-discovery? Syncing these departments on common initiatives is a smart first step.
Successful efforts to operationalize e-discovery are ultimately a major change management exercise. Ideally, everyone would have solid implementation plans; but in the real world they are built one emergency at a time. You build your process iteratively by cooperating closely with internal and external partners, harnessing learnings and evolving your operation case by case.
Why It Works
In Canada, we’re watching all this happen quite quickly in a small market—so it’s a fascinating case study. The top 10 or so companies in this country are driving change among the law firm and service providers offering e-discovery support. It’s a domino effect and is yielding positive changes across the board.
We are very accustomed to the fire drills that come with e-discovery—after all, they’ve been a mainstay of our business for over 15 years—but the fastest growing area now is working with law firms and corporations who want to drive toward a more predictable operational model. Companies are seeking better access to the right e-discovery technology to implement tools such as analytics on the average case instead of just the outliers. They also want a system that aligns to the information governance and records management policies they’re building, or already have in place.
When done well, the result is more productive work that isn’t driven by the whim of a deadline, but by an overarching view to e-discovery as a business process.
Jennifer Johnson is vice president at Commonwealth Legal, a Division of Ricoh Canada. She has almost 15 years of experience in the legal industry and is an expert in change management, strategic leadership, and organizational development.