The ediscovery market is maturing, making sophisticated tools and investigative capabilities more accessible to law firms and organizations of all sizes. To discuss this evolution Chris Walker, Senior Manager, Forensic Technology, KPMG in Canada, sat down with Susan Wortzman, Partner, McCarthy Tétrault, and Michael Condé, Director of Discovery Services, Borden Ladner Gervais.
Chris Walker (CW): You have both been tracking the development of ediscovery tools throughout your careers on behalf of your respective law firms and clients. Based on your experience, how have you seen ediscovery tools evolve?
Susan Wortzman (SW): It has been a dramatic evolution. If you think back even ten years ago, we were not doing much beyond de-duplication and keyword searching. Now, tools offer visual analytics, email threading, predictive coding, continuous active learning and multiple layers identifying near duplicates of analytic capabilities. It is a completely different world when it comes to the speed, capacity, and functionality of ediscovery resources.
Michael Condé (MC): Moreover, there has been an exponential increase in both the speed of data processing and functionality available within processing tools. As a result, the tools are far better at culling non-relevant information before the data even gets into a document review tool.
CW: And what about the ediscovery software market? How has the market evolved compared to the software itself?
MC: Choices are much more obvious now. Market leaders have emerged, which was not the case as recently as five years ago. A decade ago, our firm was trying to find a replacement for our in-house discovery document management software and we gave up after two years because we could not identify a tool mature enough to handle our requirements. We waited for the market to mature and when it did, we were able to make a selection with much more confidence.
CW: Part of that maturation is the fact that tools have become more sophisticated and customizable. You can buy a tool that fits your needs and customize the tool to enable additional functionality. With greater flexibility and functionality comes the expectation that ediscovery tools themselves will require less human involvement as processes become automated. Do you see this being the case?
SW: No – and I say that because while these tools are absolutely becoming more sophisticated, you still need people with the right skills to use them properly. Too often I hear stories about people attempting to run a predictive coding project only to give up because they do not understand the workflow or the results. With more training and expertise, I am sure it would have had a different outcome, I believe you still need highly knowledgeable and experienced people to make these tools work efficiently and effectively.
MC: Likewise, I do not see it getting to that point. The tools will continue to take on more functionality and automation, sure, but you are still going to need experienced professionals working in conjunction with the tools throughout each step to address anomalies and ensure accuracy.
CW: Analytic functionality available within modern ediscovery tools has changed the document review process. The old linear approach to document review (i.e. taking a document-by-document approach) has been replaced by a sampling approach based on statistics. Has this been a sticking point for your lawyers?
SW: Gone are the days of linear, document-by-document review. Modern ediscovery tools offer greater efficiencies and insight into data. However, we struggle to get buy-in from certain lawyers for the new process as they believe there are too many unknowns. The new approach involves analyzing documents on a statistical basis, which is always going to come with a margin of error (a trade-off of the efficiency). As an example, we often say the review is 98 percent accurate based on sampling the results. Lawyers are questioning the margin of error and are asking what may have been missed in the process. We sometimes forget that humans are not perfect either and that there has always been a margin of error, even if it was not explicitly discussed. We need to achieve defensible and reasonable results, not perfection.
MC: The two percent margin of error might not seem like much, but it can sometimes be difficult to convince lawyers to trust the process when even the smallest margin of error exists. On the other hand, as studies have shown, predictive coding is more accurate than human review. I do not think that has truly sunk in for lawyers either.
CW: Let's talk about the cost of ediscovery. Data volumes are growing exponentially and while the cost of hosting and managing data are decreasing, overall costs are rising due to increased data volumes. With organizations already straining to keep up with these costs, how does one justify investments in new ediscovery tools?
MC: It is true. The tools are fantastic, but they are also much more expensive than in the past. It can be a challenge to demonstrate the value of the tools, but I believe people are beginning to see the advantages of this technology over the old linear way of approaching document review.
SW: The biggest cost in any ediscovery project is always the document review phase. The good news is that we are driving review costs down because we are reviewing fewer documents as a result of functionality within the tools such as predictive coding, machine learning, and advanced analytics. At the same time, data volumes are increasing, so there is a push-pull factor in relation to cost. Ultimately, the cost of ediscovery is related to the maturity of the market and the maturity of the key players in the space. As we continue to refine our processes and manage data volumes more effectively, costs will be easier to control.
CW: What did your organization look for when selecting an ediscovery tool?
MC: We were looking for a tool that could provide better capacity, capabilities, and collaboration between our offices across the country; as well as a tool that came with bells and whistles such as email threading and advanced analytics. We also decided on a hosted solution, as opposed to an onsite implementation, which helped to narrow our choices. After two rounds of searching, we chose a single tool that had the benefit of being supported by a large number of vendors.
SW: For our firm we needed to select the tool that gave us the most functionality and the most possible control over the data. For other clients, our experience has been a bit different, which speaks to the fact there is no one-size-fits all solution. We worked with a number of small- to mid-size law firms that went through a similar selection process. We first had to determine the type of cases the firm handled, the size of the cases, and the firm's specific needs. Certain organizations are not necessarily concerned with collaboration or capacity. By looking at the whole spectrum of market offerings and taking into consideration the individual requirements of each organization, we were better able to select different solutions for different firms.
CW: You mention hosted solutions; and certainly, for small- to mid-size organizations especially, a hosted solution provides access to greater depth of technology and the flexibility to adopt better technologies down the road. Why was a hosted solution right for you?
MC: To be honest, I was not on board with a hosted solution at the outset. I was very much in favour of having the ediscovery tool behind our internal firewall. After learning more and gaining experience working with a hosted solution, however, I now realize we have far more flexibility and access to the best tools by having partnered with an outside provider. That being said, when we accepted the hosted solution it was very important for us to have administration rights over the tool so our internal BLG ediscovery services team could have more control over the outputs, processes and approach as if the tool was in-house.
Like Susan said, it all comes down to specific needs and practices. Personally, I would strongly advise firms to consider a hosted managed solution because it levels the playing field and provides access to greater in-house capabilities for firms of any size. There is nothing worse than purchasing a solution and deploying it internally only to see it become next-to-useless in five years. We live in a fast-evolving world, so using a hosted service provides state-of-the-art functionality from the get-go and takes away the worry and cost of obsolescence.
CW: Do you have any other advice for organizations looking to select ediscovery tools?
SW: Be flexible. Technology is always changing, so consider your investments carefully to ensure you are taking full advantage of those advancements. You do not want to tie yourself to a tool that is no longer a market leader in three years or is outright obsolete. Find that balance between a solution that will suit your day-to-day needs and one that will work over the long-term.
Lastly, and perhaps most importantly, you need people to use the tools. You can buy or license the most sophisticated tool on the market, but if you do not have the right people or the right processes to support it, the tool will stagnate and the potential benefits of that investment will fade.