Editor: What is the greatest challenge facing legal review teams with respect to e-discovery?
Wildisen: Courts and regulatory bodies are placing increased pressure on getting information to them faster. That is coupled with the increasing volumes of data that have to be sifted through. Compounding that challenge is the growing complexity of the data.
In litigation, you may be given time to prepare your case and to work through the e-discovery process. But, in many regulatory or internal investigations, those time pressures are typically accelerated. The pressure is on to get through greater volumes of more complex data faster.
Editor: How can sorting through the mass of irrelevant data be expedited?
Neicho: When dealing with e-discovery and its scope, we are talking about timing. I always tell people that what they need to be concerned about is not what they produce at the end, but what they start with at the beginning. A good e-discovery process will hopefully end up with a relatively small set of documents. The trick is to tackle the mountains of data and get to the relevant documents quicker. Although the laws don't say we have to deal with irrelevant data, this is necessary just to get to the relevant data.
Editor: How have you approached addressing these issues in a way that provides faster outcomes without sacrificing your clients' interest in uncovering relevant data?
Neicho: What we have done at Allen & Overy is put together a suite of options. What I think is innovative about our approach is that we present the client with a number of different strategic options and cost models.
We are lucky to have our own litigation support system, and because we use it for our lawyers, it doesn't cost us any more to provide access to our clients from our London servers, free of any hosting charges.
Recognizing the pressure on clients to reduce their legal spend, it is not appropriate for law firms to spend inordinate amounts of senior associate time reviewing documents, many of which will be irrelevant. One of the options for our clients to consider, in appropriate cases, is off-shore outsourcing of the initial document review process. The U.S. is already halfway there in its use of contract attorneys to carry out reviews. Traditionally, most UK law firms have carried out the entire review using their own attorneys.
After extensive due diligence, we selected a provider in India to work with. We have also worked with other specified off-shore providers at the request of our clients. However, the huge reductions in costs that can be achieved by outsourcing the review offshore have really distracted people from the main problem.
The main problem is: how do you reduce the document set so you can review less in the first place? This is the reason Allen & Overy includes the 'full use of innovative analytical software' offering as part of our suite of options.
In particular, we now have two live cases where we are already seeing the benefits of using Epiq's IQ Review to prioritize documents. It puts irrelevant documents at the back of the review queue. If there was any attempt to cut irrelevant documents out completely, I think the lawyers would be reluctant to use it.
IQ Review enables lawyers to look first at the documents that are most likely to be relevant. We may allocate to our senior lawyers those documents the software says to be, say, at least 75 percent relevant, and perhaps consider for outsourcing those documents said to be less than, say, 30 percent relevant.The documents whose likely relevance ranking falls in between, perhaps being reviewed by more junior lawyers at Allen & Overy.Obviously, sampling would be carried out across all relevance bands and, ultimately, of course, the senior lawyers would assess the review of documents in all relevance bands.
Editor: How can technology reduce human review without enhancing the risk of missing a relevant document?
Wildisen: In addition to the document prioritization technology discussed by Vince, there are other review accelerators that can be leveraged, like email threading. If someone's inbox is being processed, it is likely that they will have a series of emails all of which relate to a particular thread. We have technology that threads those emails together and identifies the final or "inclusive email," i.e. the last email that includes all of the text from the emails that have been forwarded and responded to in the thread. If the reviewer determines that the content in the inclusive email is irrelevant, that greatly increases the speed of coding the other emails in the thread.
Another technique to accelerate review is near-duping, which pulls together documents that have nearly exact content.A reviewer can assess very similar documents together, in context.
Editor: Would there still be a human review of all unique documents?
Neicho: Initially, yes, however, as trust and confidence develop in the software there may come a time when that doesn't happen with respect to documents that return a very low relevance ranking (subject to adequate sampling techniques). I think that it will be a long time before lawyers here are comfortable that a pair of human eyes has not reviewed each unique document - unique in the sense of not being a duplicate or having text repeated in an email thread.
The good thing about Epiq's prioritization technology is that we can determine the level of review required for a particular set of documents and match it to the appropriate level reviewer.
Editor: How do some of the new e-discovery technologies function - are they compatible with other technologies and software currently available?
Wildisen: They are not just compatible but, in fact, can be integrated. What happens is that these new technologies become just another phase in the discovery lifecycle. What we have done at Epiq is integrate the various technologies into our review platform which is called DocuMatrix. For example, our IQ Review prioritization technology is available as an integrated tool in our DocuMatrix product.
Neicho: In terms of compatibility, what we are doing at Allen & Overy is to take what has been processed, analyzed, and prioritized by Epiq and import it into our Caseroom hosted review system for review and further analysis. Other companies would work in different ways. Indeed, many would leave the documents in DocuMatrix and carry out their total review there.
Editor: What general industry trends do you see in terms of technology and document review support at law firms?
Neicho: I am always amazed by what these pieces of software can do. A number of my colleagues and those from other firms make a point of attending events such as the LegalTech conference in New York in order to see what's new. There are many firms that will just employ one provider to provide all of the different e-discovery related services. Allen & Overy takes the view that providers excel in different disciplines. We look at each discipline and then use what we determine to be the best approach for our needs.
Each product itself, of course, is constantly evolving.It is a moving feast, though every now and again something comes out which is a completely new. That is what Epiq's IQ Review is. It is a refreshing new approach to document review and I think its timing is perfect.
Editor: What are you hearing from inside counsel regarding their e-discovery concerns and needs?
Wildisen: At the moment what they're telling us is that they need new methods to cope with an ever-increasing volume of documents and, because their budgets are tight, they're looking for innovative ways of trying to reduce the cost of reviewing those documents. Ultimately, what they are looking for is the ability to make strategic decisions earlier without any reduction in the quality of the review. Editor: Vince, can you provide an example of how technology helped you get through a particularly massive document review project?
Neicho: One of the two cases I mentioned earlier in which we used Epiq's IQ Review technology involved 60,000 documents that we needed to look at pretty quickly. Having reviewed around 2,000 of those documents, one of our senior associates "trained" the IQ Review software to determine what was likely to be relevant and what wasn't. Indications are, and they are only indications at the moment as the case has just started, that the trained IQ Review software will review the full set of 60,000 documents and identify about 1,200 documents that are highly likely to be relevant. So, having reviewed 2,000 of the 60,000 documents, our senior associate will then be faced, initially, with reviewing only the 1,200 documents that are highly likely to be relevant.
He is not going to ignore the rest, but he can start developing the strategy for handling his case after analyzing the 1,200 documents. This experience demonstrates that the use of IQ Review is absolutely crucial when it is necessary to get a handle on a case quickly and will give law firms using such technology an edge over their competitors.
Editor: How do you convince the client that using new technologies is cost effective?
Neicho: You should have metrics in place that show how much the client saved, when it saved it and how it saved it. We look at our clients as partners who are concerned about how we do our work. We don't believe in advising or working in a vacuum. As such, the service provider that will be working with our clients' in-house counsel becomes part of the team.
Wildisen: Measurement is absolutely the key. When Epiq deploys a new technology, we make sure that we can quantify its effectiveness. We measure how much review accelerators actually increase the speed of the review. In the case of prioritization, we build metrics around the process to make sure that it actually does increase the speed of the review process without compromising accuracy.
Editor: Greg, how important is it for lawyers to understand e-discovery and the technologies involved?
Wildisen: The judiciary inboth the U.S. and the UK mandate that lawyers know about the technology that is used in e-discovery.
Some law firms, Allen & Overy being one of them, have dedicated litigation support staff who train their lawyers in the use of e-discovery technology. However, many law firms do not have similar resources. Nevertheless all lawyers are expected to understand the process, to know the nuances and to understand the legal implications of the technologies that they deploy. Courts can impose drastic sanctions for not producing relevant documents.
Published November 2, 2009.
