Law Times

Law Times • December 5, 2016 Page 11 www.lawtimesnews.com Lawyers turn to technology to lower discovery costs BY JIM MIDDLEMISS For Law Times L awyers who doubt that technology-assisted doc- ument review works bet- ter than a linear review using contract lawyers to read all the material need to speak to Anne Kershaw. Kershaw, a former litigator who is now president of Rea- sonable Discovery, LLC, a New York-based e-discovery firm, says she has spent her entire ca- reer "working to keep discovery costs down and contained." "We need to make this pro- portional and we need to make this matter" is her mantra. Unfortunately, though, she says, when it comes to electronic discovery in the United States, "a lot of people are making a lot of money having it be big, hard and large volumes" when it doesn't have to be. In the U.S., she says, it's all about "turning over every peb- ble, every stone," and "once that got out of the gate . . . it's really hard to trim it back." So Kershaw was pleasantly surprised earlier this year when she was invited to speak at a con- ference in Canada and felt a dif- ferent tone. "Canadians, you get it," she says of efforts to rein in e-dis- covery before it becomes too unwieldy. One way to do that, she says, is through what she calls an it- erative legal analysis sampling or ILAS. That's where someone who understands the case, the client objectives and strategy uses technology-assisted review to narrow the scope of docu- ments that need to be looked at by legal minds versus the tradi- tional method of having a team of contract hourly lawyers pore over every single document. Kershaw wanted to test which method worked better, so she took a data set from an actual case involving a software com- pany and set up two teams. The linear review team com- prised two contract attorneys provided by a staffing firm, who were chosen for their extensive document review experience. A senior document review attor- ney oversaw their work. The ILAS team comprised a senior legal technology manager who was an expert in document review analytics and a senior lawyer from Kershaw's e-discovery consulting firm. Both teams were provided with the pleadings and document requests that were served in the case, as well as 9,764 documents, which included emails, Micro- soft Office documents, PDFs and some files that were unique to the client's computing systems. The teams were told to mark any relevant documents that pertained to modifications, al- terations, improvements or re- pairs to the software developer's goods or services and those that involved issues, problems or de- fects in the software company's goods or services. The teams used a platform provided by EDT Software, a doc- ument processing and hosting firm, which has analytical tools. The linear review team read each document to determine which ones were relevant, while the ILAS team used the soft- ware analysis features looking at metadata and using key word and Boolean searches. The terms and findings were continually refined using real-time analysis of documents that produced hits. In June, Kershaw published her findings. It took the linear team 98 hours versus 14 for the ILAS team. Moreover, the ILAS team found 418 more relevant documents and was more likely to include a borderline document. In an interview, Kershaw says the cost of using e-discovery tools and data repositories has declined rapidly from hundreds of dollars per gigabyte down to US$35 per gigabyte. "You can get to the story pret- ty quick if you do it right," she says. Moreover, litigation cost savings can be had by conduct- ing internal e-discovery earlier in the game. She says many liti- gators see discovery as expensive and will hold off as long as they can because the case might settle or get dismissed. "That's a big mistake," she says. By zeroing in on the crux of the documents at issue and knowing the narrative early, she says, it can be more efficient fi- nancially and for the case at hand. Litigators that don't work with thousands of documents must also be equally efficient and cost conscious when it comes to e-discovery. David Wires, a litigator at Wires Jolley LLP, a four-lawyer firm that focuses on corporate, trusts and estate litigation, says electronic records are pervasive and Canadians leave a digital trail everywhere they go, wheth- er it's buying goods with their credit cards, using a smartphone, posting on Facebook, paying bills or sending texts and emails. "Finding, recovering, analyz- ing and using digital records will become, if it has not already be- come, the most important skill a litigation lawyer has," he says. Yet, only a fraction of that in- formation, one or two per cent, is relevant in a lawsuit, he says, "and the cost of recovering the records, putting them in a usable format and converting them to a case brief can be very expensive." To rein in those costs, he works with a computer forensic consul- tant who can "freeze and recover digital information and make cloned working drives" for him to review when litigation arises. He then uses an array of tech- nology and tools to help orga- nize and sort the information from the moment the case starts. That includes litigation work- f low software that helps him sort documents and evidence. He also uses software that allows him to search the cloned hardware drives to isolate data and conduct full-text searches on large volumes of information, which can be linked back to the case management software. 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