E-discovery and e-disclosure have been embraced by the law, but which is the best software and what is left to learn?
The field of e-disclosure is unrecognisable from ten years ago. Back then the primary mode of searching documents was by hand. Today? It’s almost all digital. Lawyers happily discuss the merits of different artificial intelligence approaches to concept grouping. Even paralegals are conversant on metatags and statistical sampling. The industry should be congratulated. Clients ought to be delighted.
However, there’s no room for complacency. Law firms need to be asking: what next? Improving on the current e-disclosure techniques won’t be easy. The big gains have already been achieved. So how can law firms polish their act?
The United States used to lead the field. British firms would observe and imitate. Not so easy these days.
“The US pioneered the area,” notes Laurence Lieberman of law firm Taylor Wessing. “And there are a lot more providers in the States,” he says. “But what you find is the big US providers are tracking and selling to the UK anyway. So we get that knowhow.”
Rob Jones, legal consultant at Kroll Ontrack, agrees. “The perceived division between the UK and the EU, and the US is a bit false,” he says. Instead, litigators can look at other fields using e-discovery techniques, such as mergers and acquisitions (M&A).
“There are predictions of lots of M&A activity in 2015,” says Mr Jones. “Some of these may attract the attention of the competition authority. Some may be referred to the EU for a phase-two investigation. That process is the same as e-disclosure, but needs to be done in 28 days. When you have half a million documents to sift through to find the 5,000 or 10,000 documents you need that is a huge undertaking.
“We are looking to deploy this sort of service to other situations where they simply need to sift through large amounts of documents.”
Lawyers must study e-disclosure software to get the most from it. “The most practical advice I would give to lawyers is to roll up their sleeves and learn about e-discovery,” he says. “We put on seminars and hold events, which offer CPD [continuing professional development] points. We publish articles through the year and we write a blog, edisclosureblog.co.uk, which covers the main points.”
Pleasingly, this need not stretch to unpicking the algorithms behind stuff like latent semantic indexing (LSI). Adrian Palmer, managing partner at Proven Legal Technologies, which helps firms such as Addleshaw Goddard execute e-disclosure, comments: “I have only ever met two people who really understood LSI. I lasted about 45 seconds. We have one guy in our organisation who does, but it is incredibly complicated. You don’t need to understand how it works.”
The most practical advice I would give to lawyers is to roll up their sleeves and learn about e-discovery
The debate of single technology vendor versus a bespoke combination of best-in-breed approach remains unsettled. Vijay Rathour, vice president of investigations firm Stroz Friedberg, puts the case for the former. “A flexible range of technology-assisted tools is almost always more effective than a one-size-fits-all approach,” he says. “While individual technologies are less important than the combined technological expertise, some powerful new analytic technologies are emerging, beyond even the most recent generation of tar [tape archive] tools of predictive coding, clustering and thematic mapping.”
Where there is unanimity, from both vendors, consultants and lawyers, is that the key element is for lawyers to be more conversant with their technology partners.
Nigel Murray, director of Omnis Global, says the ability to communicate is the most important ingredient when deciding which technical partner to choose. “The various systems all achieve pretty much the same end, although they go about it in slightly different ways. It comes down to relationships,” he says. “Lawyers need to ask, ‘Are these people I can work with?’ Outsourcing e-discovery is not the same as outsourcing photocopying or translation. It is collaborative. The lawyers have a degree of supervision, so there needs to be constant dialogue. Technology is not the decisive factor.”
Lawyers can invest time in helping clients prepare for e-disclosure. In particular, they need to emphasise that companies must have in place processes to address e-disclosure. Peter Robinson, partner and head of e-discovery at Deloitte, says: “Companies are seeing a number of increased data requests that involve a high volume and complex range of data. Responding to these requests cannot be done on an ad hoc basis; it’s too risky and expensive.
“Companies experiencing a high number of data requests should develop an operating model that ensures they respond in the most efficient and effective manner. This is not just a question of technology; having the correct people and processes in place is just as important.”
These areas all give lawyers scope to improve. But the one biggest tip for making e-disclosure go more smoothly? The same advice is chorused seemingly no matter who you ask. Mr Lieberman of Taylor Wessing spells it out: “You have to have the initial discussion very early on. You will come a cropper if you don’t. Judges and regulators are much better trained at e-disclosure than ever, and will take a dim view of litigators who have not made an early start.”
PSYCHOLINGUISTICS IN AUDIO ANALYSIS
Audio analysis is a growing element of e-disclosure. The ability to transcribe audio into searchable text means it is now far simpler for lawyers and compliance officers to handle sound files using the same processes as for text documents. Gone is the chore of listening to hundreds of hours of chit-chat in raw audio form.
The next phase of audio analysis is now under way. Lawyers can search for more than mere keywords. Speakers can be identified and tracked by their unique voice “fingerprint”. It is possible to gather all calls made between two persons, no matter what landline or mobile handsets they have been using.
The real game-changer in audio is the ability to label the emotion of each conversation. Peaks of volume, choppy sentence structure and word intonation indicative of anger can trigger a flag for regulators to investigate. If a broker and client have a blazing row, the compliance officer can be alerted before there is any official request to investigate.
The drive to improve will come from banks and other financial organisations keen to move from a reactive compliance approach, to a proactive methodology whereby flashpoints are noticed the moment they arise.
The sector is still in an early phase. “Audio is coming under increasing scrutiny,” says Tyrone Edward, e-discovery specialist at EY. “The quality has got much better, but the analogy is with OCR [optical character recognition]. The OCR engines got better. We are at that same point. We are on a difficulty curve.”