• Magnus Becher, Director |
3 min read

As part of our ongoing series of Forensic related themes Magnus Becher (Director in Forensic Technology) explores with Dr Silvia Hodges Silverstein (CEO of Buying Legal Council) the issue of eDiscovery and getting the most from technology.

The world of forensic technology and electronic discovery is a peculiar one. Often times, buyers of electronic discovery services focus on the latest gimmick in technology, the lowest per GB rate or service offerings that claim to be for free. We can see the temptation in that, but we also see the dramatic downside.

The reality is that CEOs and general counsels know that free is not possible or at least not sustainable. So, how does KPMG’s Forensic Technology team drive innovation and reduce cost whilst enabling the best risk outcome for our clients? Below are some of our observations and recommendations to save money. 

Improve your information governance and litigation readiness

If the regulator came knocking, how confident are you in your record retention, data classification and legal hold process? KPMG helps you organise data, address risks, and balance retention and deletion. Having your data house in order improves litigation outcomes and drives down cost. It takes clients days and sometimes weeks to locate data which puts them on the backfoot of every discovery/disclosure exercise. 

Do not collect and cull your own data

In the context of a dispute, identification and collection work performed by in-house IT teams is a risky and costly business. It creates a perceived bias which can weaken your position in court. So, you may have lost your case before it began. In addition, most collections we receive are either too narrow and incomplete or overly broad. The former means that the entire collection will have to be repeated, so you pay twice, and the latter means that a huge amount of irrelevant data will have to be processed, culled, and searched, which slows down everything. In the eyes of the law, your in-house IT is not trained to forensically identify, collect, encrypt and transfer evidence. KPMG’s forensic specialists are trained in targeted collections and transfer of data into a secure cloud environment for further analysis. We have the experience and technology in place to defensibly cull data sets for legal review. Also, we are regularly invited to testify and give evidence to our tried and tested forensic collection methodologies in court. 

Leverage a managed service

My friend Dr. Silvia Hodges Silverstein at Buying Legal Council can sing a song about the weird wonders of legal procurement. In eDiscovery, clients like to run lengthy RFPs first to join a panel of around six firms. That means the client agrees with the prices and signs an MSA. Interestingly, every project that materialises is then again bid out amongst the panel firms to provide additional information and even lower pricing to see which firm deviates the most from the pricing provided in the MSA. KPMG challenges this approach as it is inefficient and leads to sub-optimal outcomes. The most sophisticated clients nowadays move to a managed service at a fixed monthly rate over 3 to 5-year periods. That gives the client and KPMG cost and investment predictability and creates tremendous operational efficiency for in-house legal. Our clients like to be dealing with the same group of people and that they can develop repeatable models and advanced analytics that work for their cases. This increases speed to insight which gives them an edge in litigation strategy and outcome. 

Protect your brand from reputational risk

This ties in with point three. Litigation and investigation data are high-risk data sets which cyber criminals are keen to acquire. We encourage you to look under the hood of an eDiscovery provider that is constantly the lowest on price. What you find will not be pleasing as can be seen by some of the most recent cyber breaches on law firms and eDiscovery providers. KPMG has made multi-million pound investments in software, like Relativity, and cyber security in a multi-cloud SaaS environment to keep your data safe. The firm introduced superior risk process and behavioural policies globally to protect high risk data sets so that you don’t have to. 

Use a larger firm with a comprehensive offering

Not all cases are the same and many require additional specialist skills which your typical eDiscovery provider does not offer. Contracting specialist knowledge for an individual case is hugely expensive and can be avoided if the firm has the expertise already in the staff. Forensic technology is part of a larger forensic function of 3,000 professionals across 47 offices. Those professionals provide expert witness testimony, litigation consulting, legal service, economic damage assessment, corporate investigation and data science when you need it without costly new contracting and procurement.