eDiscovery in SA – the reality of “Know your data Know your case”

Following my recent post ?I have been encouraged to expand on my mantra “Know your data Know your case” with some practical examples.

One way and another I have been involved in litigation cases for around 40 years, the first 20 working in law firms and specialising in litigation, and the last 20 being involved in eDiscovery. I have seen enough, both positive and negative, to categorically support my mantra.

In the “old days” before the electronic revolution, we would gather documents from filing cabinets, basements, storage warehouses etc. and start ploughing through them. We would be armed with initial instructions from the client giving a basic introduction as to what the case was about and we would go back to the client, once we had trawled through the documents, with specific “finds” we would ask more involved questions and take further detailed instructions. Then, along came electronic documents, emails, word docs, spreadsheets PowerPoints etc. and we were all deluged. Worse, the clients could not know everything that these documents (data) contained let alone the significance of them, or some of them, to the case in hand. Therefore, for the first few years of eDiscovery technology, we collected and processed everything, sorted by date and custodian, made a few searches and together with the lawyers, thought we were the “bee’s knees”. The problem was that no one told the clients how much this was all going to cost, and so “global corporation.com” eventually said “enough is enough”. They demanded more and better technology aimed at finding and filtering data. They demanded their external lawyers used every bit of technology possible and refused to pay high hourly rates for reviewing irrelevant documents. Thankfully, then along came ECA as I explained in some detail in my previous post.

I make no apologies for what some may consider to be a cliché “Know your data, Know your case” – in fact I am going to use another one, “You don’t know what you don’t know”. Put another way, in many cases neither the client, and certainly not the lawyers know what they are actually looking for. I won’t repeat all of the various invaluable features of ECA that I highlighted in the previous post, but I would recommend you take another look and much of what I have said above will become clearer. What is paramount is that the data drives and defines case strategy. ?

I have been in the fortunate position of being involved in cases all over the world and I can honestly say that in every one in which ECA has been used in some aspect or another, the value has been tremendous. Reducing the data by up to 80% is an enormous benefit to lawyers facing deadlines and a massive boost to the paying client. Having the ability to focus on refined dates, people, terms, document types etc. has the same effect and everyone wins, (except those lawyers who feel that technology removes their ability of reviewing every single document and getting paid for it – yes there are still some of those lawyers around).

There are so many examples of cases in which I have been involved so let me just mention a couple in the hope that it may resonate.

I had one case in the UK, in which, I was instructed by the corporate client and asked to work with their external lawyers. The client had an excellent Head of IT and IT department and so we were able to tap their knowledge to target the collection of data rather than just collect everything but still the collection was huge with millions of documents. The lawyers were fine with that and then wanted to get on quickly with reviewing. My duty was to the client and so I cautioned and advised the CEO that this was not good practice and would be expensive. Further they would not be getting value for money from the technology. The lawyers were told to hold off. As it happened there were some people at the client company who had a very good handle on the matter in hand and working with them, we began dicing the collected data using ECA features which reduced the collection to approx. 150,000 documents. Interestingly, the story did not end there as the lawyers wanted to get on with reviewing this balance of the documents and we put a stop again. This time it was about using Technology Assisted Review (TAR) to further reduce the 150,000. Without going into detail, we reduced the data set to approx. 12,500 documents which was all that the lawyers needed to review. The result was a tremendously happy client and a somewhat disgruntled law firm. However, we must have struck a chord with the lawyers because a few months later they contacted us on another case for a different client and asked us to use all of the same technology for this new matter!

Another example refers to IP litigation for pharmaceutical cases. I was privileged to be the European service provider for a very well known global pharma whose Head Office is in the USA. There was always one case or another where two or more pharma’s claimed “first rights” over a particular drug and the amount of data, every time, was enormous and almost always involved collecting from offices as well as research and production facilities across Europe.? We got to learn how these cases needed to be run by understanding the relevant data. In particular there were always notebooks containing the research work carried out by the scientists and the dates of those notes was often crucial. It was so important to have this data first and as quickly as possible before dealing with the remainder. I enjoyed an excellent relationship with the GC of this pharma and he had been “burned” with huge legal costs on many occasions, to the point that he and his in-house legal team had learned a great deal about, not only using eDiscovery technology, but ECA in particular. It made me smile when I saw how he dictated to his external lawyers what they would and would not do, what technology they would use and what they would and would not be charged. The results in terms of reduction of data were amazing but even more importantly the ECA features helped the focus on the strategy of how to handle the case and where the likeliest “case winning” (or losing!) documents could be found.

In both cases above you can see just how important the data proved to be. Knowing what was available and relevant to drive the case forward and allow the lawyers to concentrate only on what was necessary. Know your data know your case.

I am sorry to say that I do not think that ECA is used enough here in SA. This is not a criticism of lawyers and their clients, per se, because in some instances they may not have been properly advised by their providers as to what is available and what can be achieved, and the solution being used may not have full ECA capacity. It is also lack of experience all round, as in the USA, UK etc. for example ECA is used much more extensively and almost as a matter of course.

Some eDiscovery solutions are set up in a way that allows experienced people to extract all the ECA features at a lower cost than when the data is ready to be reviewed. ??This takes skill and experience of data, as well as knowledge and experience of cases. Lawyers and clients need good providers with these qualities to take advantage and then my mantra will be crystal clear – Know your data Know your case.

Terry Harrison

eDiscovery Consultant

[email protected]

+27 (0) 748347818

www.terryharrison.co