By Dr Tristan Jenkinson

Introduction

Last week I read a fantastic article by Kelly Twigger (of eDiscovery Assistant fame). The article talks about the “eDiscovery Disconnect”, and addresses the gap created in eDiscovery when lawyers responsible for the legal strategy in a case hand off the disclosure area to litigation support or an external vendor. This means that there is a gap between case strategy and the data itself. Kelly raises that this is not just a missed opportunity to do things better, but a potential liability.

I would thoroughly recommend reading the article, is contains some great insights including highlighting that this is not a new phenomenon (Kelly wrote an article on the same topic seven years ago!) The article inspired me to put together an article to provide some additional commentary on some related points. I’ve prepared some thoughts across a few themes, an additional perspective on the disconnect identified by Kelly, a related second disconnect, and the impact that those disconnects may have in the future before discussing potential solutions to mitigate the issue.

An Additional Perspective

In her article, Kelly states that “Many lawyers still view ediscovery as overly technical, expensive, and separate from their role”. Certainly my experience has been that in the majority of eDiscovery cases that I have seen from the vendor side, senior lawyers hand down the duties of managing disclosure to more junior staff such as associates and senior associates. In conversations over the last few weeks with industry colleagues globally, this is not just the case in the UK, but in the US and other jurisdictions as well. These more junior lawyers often have little, or even no experience in eDiscovery. Certainly in the UK, there seems to be little to no time spent on law courses covering the area of disclosure.

For obvious reasons the associates and senior associates are under pressure to do a good job. They are looking to prove themselves and demonstrate to the senior lawyers that they should be considered for further career progression. This can mean that some decisions which should potentially be referred to the senior lawyers for strategic legal decisions, get decided by the more junior team running the eDiscovery side of the matter day to day. This is part of the disconnect that Kelly describes in her article.

To give an example, I refer to an article that I put out last year discussing the risks of providing documents for disclosure to your eDiscovery vendor via email. In that article I cover a situation that I have seen many times. Late in the day, the legal team need to add documents to disclosure, and send them over email. The article gives a number of reasons why such an approach can be a bad decision and explains why it can cause significant risks to the legal case. A more seasoned senior litigator may not want to take on such risks and may inform their end client that the data has to be collected and/or transferred correctly.

This is where we can see a related disconnect that I believe can exacerbate the disconnect highlighted by Kelly.

Transactional and Consultative eDiscovery Vendors

In my experience, there are two main approaches that vendors take to providing eDiscovery services. They tend to be either consultative, or transactional.

Consultative eDiscovery vendors will usually take an informed approach with teams who understand the potential issues at play in a case, and can provide technical advice so that the legal team can make an informed decision on how they want to move forward.

Transactional eDiscovery vendors tend to take a “cookie-cutter” (or “sausage machine”) approach. They have developed a single approach to eDiscovery, trained their staff to use the tools to complete work in line with this approach, and treat cases in the same way.

I have personally always advocated for taking the consultative approach to eDiscovery, I have been lucky enough to work in a fantastic dedicated eDiscovery Consultancy team at Millnet/Advanced Discovery which saw a huge amount of success with this approach. Having a consultative approach with a dedicated team does not mean that you necessarily need to involve consultants at all stages, but have them integrated into the process to assist where needed, and to help build and educate the teams around them so that other teams know when to bring them into discussions. This is an area that I am passionate about, so if you want to discuss it another time, just drop me a note!

Transactional eDiscovery can be effective, for example on simple straightforward matters which can benefit from a cookie cutter approach. This is especially the case if the lawfirm involved understand what they need from the provider, and know that they will get that from the transactional provider in question.

This dynamic in the eDiscovery industry can cause an issue in combination with the eDiscovery disconnect from Kelly’s article.

Where responsibility for running the eDiscovery side of the project has been handed down to junior associates and senior associates with little experience running disclosure matters, and a transactional eDiscovery provider is in place, there are often points where a consultative provider may raise potential risks, asking the legal team if they are sure that they want to proceed in a certain way, explaining the potential risks from a technical perspective and how they could impact on the legal approach. Under a transactional approach, the vendor will often simply do what they are told (e.g. please put the attached document into the disclosure). This is where the disconnect from Kelly’s article can be compounded by a further disconnect on the vendor side. This can mean that poor decisions can be made, unchecked, resulting in additional risk and/or liability for the legal team and their end client.

The Future

I have heard (likely apocryphal) stories that in the past some people thought that eDiscovery would be “solved”. When vendors could process email data (including attachments), Microsoft Office files and PDF files, that they would be done – eDiscovery from a technical standpoint would have been solved.

The reality is sadly very different – technology does not stand still and eDiscovery is not something that will ever likely be “solved”. Aside from the increased volumes, we see new types of data, and even new categories of types of data. Recent topics have included chat data and ephemeral messaging, hyperlinked attachments, Slack and Teams data etc. Topics that we are likely to see in the future include generative AI content such as Copilot summaries of meetings, more collaboration tool content, and content that is likely still a gleam in a developer’s eye. With new technologies, we also see diverging methods for data storage. While email data was (mostly) consistent in format, different providers of chat tools (for example) use different methods to store data. In addition, many of these methods are continually changing – especially chat data stored on mobile devices.

Keeping up with different data sources, methodologies for collection and processing is a complex and ever changing challenge.

Add to this the new technology that we have access to within our eDiscovery tools themselves. We now have a variety of tools based on generative AI which can be used for various purposes. All have their pros and cons and tips and tricks.

There are also changes in law to keep abreast of. In the US, former Judge Paul Grimm and Maura Grossman have been proposing changes to the rules of evidence to address evidence which has been generated using AI. In the UK, after several years of pilot implementation, we now have Practice Direction 57AD, but that certainly does not mean that we are exempt from changes and updates in the not too distant future.

We also constantly see new legal cases involving eDiscovery matters. Faked and falsified data is a recent popular topic coming out of case law. Understanding the case law and impact that it can have on your case can be really important. I have often explained concerns about risks on certain actions with legal clients, referring to case law that they can go and look up to understand more about the potential issue (and the potential risks and sanctions that could be implemented). For example, I have mentioned the Cabo Concepts case a number of times where self-collections of data have come up in cases due to go through the courts of England and Wales (hoping to have a separate series of articles out on that at some point in the future). Keeping up with relevant legal case law is also complex.

To summarise:

• We will see data volumes continue to grow.
• This data will be more complex and spread across new categories of data.
• Methodologies for preserving and processing that data will continuously change.
• The laws underlying eDiscovery will change.
• There will be more case law that impacts on day to day eDiscovery cases.
• There will be new (potentially more complex) technology to use in eDiscovery cases.

Typically consultative vendors are those at the forefront of these changes. They seek to perform the research and demonstrate the skills needed to solve problems with new data. They help discuss, define and refine best practices. They look to understand changes in law, and updates in case law that may assist their client’s approaches.

In comparison, transactional vendors are typically much more reactive. They may update their procedures when new best practices are documented, or based on information and recommendations put together by software vendors regarding their products. This means that there can be a delay between consultative vendors being able to address an issue, and transactional vendors being able to address the same issue.

With the above changes (more data, more types of data, more technology etc.), we could see a growing gap between consultative and transactional eDiscovery service providers.

Solutions

Kelly’s article does discuss methodologies for closing the gap, also highlighting that “tools alone won’t solve the problem – lawyers must actively engage”. Kelly’s platform, eDiscovery Assistant, helps to facilitate this by putting tools, resources and education in one place. But this may not be the only approach to address the problem.

An alternative or supplemental approach might be for legal firms to seek out someone who could help to bridge the gap. Someone to explain the potential technology approaches that are possible to the legal team and discuss how that could impact the legal strategy. Then to be able to have the technical conversations with the eDiscovery vendors to ensure that the legal team get what they need.

The skillset for this approach lines up closely with the skillset for a good eDiscovery consultant on the vendor side. This interpretation approach is essentially the same role, but on the legal side, rather than the service provider side. This sort of role can also be covered by a Legal Data Intelligence professional.

Legal Data Intelligence

I have written about Legal Data Intelligence previously. In full disclosure, I have since applied to join, and was accepted to, the LDI Architects team assisting in the continued development of the LDI framework.

The LDI framework (which you can find much more about at www.legaldataintelligence.org), discusses skills and approaches that can be used to address data challenges.

Rather than only looking for lawyers to educate themselves and engage in more depth with the technology, an additional, supplementary approach stemming from the LDI frameworks would be to have a position addressing the data challenges which could fulfil the role described above, amongst others.

The original LDI whitepaper discusses the potential benefits that can be obtained by utilising Legal Data Intelligence practitioners. For law firms the whitepaper states:

“Within law firms, Legal Data Intelligence practitioners will enable lawyers to stay focused on their subject matter expertise without being impeded by legal data challenges.”

Allowing lawyers to focus on their areas of expertise, helps to address those lawyers that consider the related data challenges (especially with regard to eDiscovery) as being overly technical and distinct from their responsibilities, as Kelly’s article raises as an issue. 

One of the other benefits of Legal Data Intelligence practitioners is that the role is fundamentally designed to work across functions, breaking silos to bridge data gaps within corporate legal departments, law firms or service providers. This is because fundamentally the data skills translate across many different applications. Litigators may need assistance dealing with data in disclosure or discovery, Privacy Lawyers may need support in relation to data privacy or responding to DSARS and FOIA requests, there may be data challenges in relation to contracts, invoices, or operational efficiency. As Farah Pepper (Chief Legal Innovation Counsel at Marsh McLennan, Founding member of LDI) said at the LDI launch at CLOC last year:

“Legal Data Intelligence lends itself to new types of roles across multiple seniority levels of legal teams. Think of a Legal Data Intelligence analyst as someone who’s comfortable with rolling up her sleeves, working across a wide range of practice areas and has the wherewithal to find solutions to complex legal data challenges”

Another key point for legal teams to consider is that they may already have a Legal Data Intelligence practitioner amongst their ranks. In a recent article on how LDI could lead to new roles in the legal profession, Omar Haroun (Founder of AI x Legal and TextIQ, LDI founder) recounts an incident where a firm spend months looking for a new privacy lawyer to deal with DSARs in the wake of GDPR:

“… and when they finally get their privacy lawyer, it turned out that person actually had no idea how to respond to a DSAR. But then down the hall, there was someone who had this LDI-style skill set and eventually figured it out.”

Regardless of how eDiscovery gaps and disconnects are addressed, it is something that law firms and service providers should be considering now. The volumes and complexity of data required for disclosure and discovery matters will continue to increase. The technology available to deal with that data will continue to become more complicated. The case law and underlying laws will continue to change and update. There is a real risk that those who do not evolve to embrace the data challenges could be left behind.