Litigation Support

Beyond eDiscovery--leveraging discovery tools across practices

By Joan Washburn posted 05-31-2017 19:58

  
More than a decade on from the changes to the Federal Rules of Civil Procedure launched us into the brave new world of eDiscovery, law firms and law departments have embraced the use of technology to innovate and provide efficient and cost-effective solutions.  The changes to the rules were a key driver of change for litigation departments and many firms and corporations have made significant investments in robust infrastructure and powerful tools.  These significant investments have given rise to an interesting transformation in the use of these tools.  While initially driven by the “big data” needs of eDiscovery, firms have evaluated the investment and greater demand for cost-effectiveness and ROI across all legal work, and recognized an increased reliance on advanced searching, analytics tools, collaboration and transparency across practices.  The need to collaborate on complex business challenges has led to the development of applications and workflows with the potential to change the face of the legal landscape. 

A man with a hammer, or a solution in search of a problem

Sometimes, innovation does not come simply because you have to solve a problem, and it’s the investment itself that sparks creativity.  When we brought Relativity in-house at Holland & Knight, it didn’t take us long to realize the potential.  We immediately started using it to solve complex eDiscovery issues.  Our first non-eDiscovery challenge came during a very large, high-profile white collar trial for which we had an extremely tight budget.  (Sound familiar?)  There was a jury pool of over 1,000 people and during voir dire, our attorneys had to be very nimble, with the ability to search and organize juror information on the fly.  Our jury consultant came back with a six figure number for this project.  The legal team came to me to ask if that seemed reasonable, and if I had suggestions for how to bring the cost down.  Since we had just spent an enormous amount of time and money building out Relativity, it seemed like a next logical step to explore other uses.  We used Relativity’s API and dynamic objects to create an interactive application that allowed the legal team to enter, track and, most importantly, report on juror information, saving the client a great deal of money.  That started the “how else can we use this investment” project at Holland & Knight.  We have since built a case management platform for litigators, a matter and task management platform for our structured finance group, a repository of decisions and actions by jurisdiction for our white collar group, a compilation tool to assist clients in response to public records requests, and a project management platform for the Litigation and eDiscovery Services group. 

I’ve compiled several examples of ways that law firms and in-house legal departments are getting the most for the money.

Rock, paper, paper, paper, paper…oh, shoot!

A familiar issue at most law firms is how best to manage data that is not in ideal form.  We’ve all dealt with boxes of paper that, if it is touched one more time, will crumble to dust.  Farella Braun + Martel LLP found itself in this situation with legacy repositories of insurance forms and created a solution for its clients that not only preserved the data but made it readily available and organized for use by legal teams and clients.  

Gillian Glass, Director of Practice Support, Paralegals and Records  

At Farella Braun + Martel we took our knowledge of how users search and the types of documents clients ask for over and over again and applied it outside a single piece of litigation. We have leveraged both our document coding and knowledge management skills to create useful document management for our clients.

One of our firm’s core practices is our insurance recovery group, recovering monies for policy holders. For a large property owner we have set up two different repositories on iConect Xera, our eDiscovery review platform. The first is a database of all of the client’s insurance policies going back decades, where policies are coded by type, periods, endorsements and key provisions. This preserved and gave the client access to old policies that would otherwise have only been available on microfiche and resulted in the client recovering payments on old policies. It allowed the client’s risk managers to research coverage across multiple years and sites. The second database contains coverage opinions, legal research and settlement agreements going back almost thirty years. Since the client can have similar issues across different properties, this database allows it to not reinvent the wheel every time. Insurers ask how the client settled prior sites, and we can show them provisions in multiple settlement agreements. The client’s counsel is able to research coverage issues from several law firms and build on that research as new issues arise.

A total Eclipse of the prebill

Often, the best use of a tool isn’t client-facing but solves a long-standing problem or helps a firm function in a more efficient way. Managing the prebill is a problem that vexes many law firms. It is a process touched by many people, all creating work product essential to the financial health of the firm.  Haynsworth Sinkler Boyd designed a unique solution.

Barry Wheeler, Operations Manager-Litigation Technology, Haynsworth Sinkler Boyd

The Accounting Department at Haynsworth Sinkler Boyd is using Ipro Eclipse to organize marked up prebills. While preparing to transition to paperless billing in Aderant, we developed this interim process to eliminate most of the waste associated with managing and storing these records in hard copy. Historically, the Accounting Department issued printed prebills to attorneys. Marked up prebills were returned to Accounting for edits, and those hard copies were sorted by client-matter number, filed, and preserved per the firm’s document retention and disposition policy. Rather than retaining and filing marked up prebills in hard copy, we developed a system using EscanIT and Eclipse. Marked up prebills are slip-sheeted by Accounting and scanned to PDF in bulk. The bulk scans are imported into EscanIT where they are separated at the slip-sheets, OCRed, and then exported to Eclipse. Once in Eclipse, prebills are easily retrieved via text searches (client-matter numbers) – they are also coded and tagged as necessary. As we move to a truly paperless billing solution in Aderant, this stopgap process has dramatically reduced labor and storage costs.

Put a Ring(tail) on it 

Litigation is not the only practice that faces an explosion of data.  Due diligence for a Merger & Acquisition takes more than a conference room with a long table. Dorsey & Whitney has developed several interesting uses of its eDiscovery platform, Ringtail.

Caroline Sweeney, Global Director E-Discovery & Client  Technology Services, Dorsey & Whitney

At Dorsey & Whitney we have long championed leveraging the investment in our Ringtail platform for the benefit of the firm, regardless of the practice group.  As a result, we have seen Ringtail used with great success in response to regulatory matters, internal investigations, white collar crime, and litigation.  We have also used the platform for various due diligence matters for our M&A group, Real Estate practice group, Health group, and Trademark group, among others.  On one project we consolidated contracts from various contract management systems our client maintained and used Ringtail to facilitate a review of the contracts, identifying information to use in generating and sending letters to the client’s Business Associates.  That project involved the use of Ringtail, our managed review team, our Document Services team and Mail Room – it was really a great example of bringing resources together to meet a client need under a tight deadline and in the most economical manner feasible.

Ringtail has come in handy in reviewing the content of a recovered laptop in a data breach matter, confirming who required notification from the client regarding the stolen laptop. Our Marketing team has even found Ringtail helpful when researching historic RFP information for reporting purposes.  Our Admin team has used Ringtail to help filter documents for large file transfers.  And, recently, we have used Ringtail to create a repository of relevant e-discovery case law, accessible to our attorneys…it’s not Westlaw or Lexis, but it is a handy quick reference location.

Not only do we leverage our technology, but we leverage our people, too.  As a result, team members work with our Tax, Trust & Estates group to improve document automation functionality.  Our managed review services team, LegalMine, work not just on litigation related document reviews but M&A reviews and Public Finance self-reporting due diligence.  On a recent M&A matter, Ringtail was used to de-duplicate and find similar vendor contracts.  The LegalMine review team conducted review of the thousands of vendor contracts and developed a master list of contracts, subsequently preparing assignment consent notices, HIPAA business associate agreements, and other agreements.  The LegalMine review team managed the communications sent to all of the applicable vendors, notifying them of the transfer of operations and requesting vendor approval or other action, following through with the vendors until they received signed consents, business associate agreements or other necessary documents. The project was a great success and the legal team and client were pleased, sharing the success story with the rest of the firm and lauding the contribution of our expertise in the successful acquisition.

The more we can leverage our people, processes, and technology, the more value we provide to our clients and to our firm. 

Relativity in da house!

Corporations and in-house counsel have also made significant investments in technology to manage eDiscovery. I spoke with an eDiscovery Specialist at a multinational corporation with a highly sophisticated approach to eDiscovery to see how it is utilizing its tools to streamline its in-house processes.

eDiscovery Specialist

After implementing Relativity as the in-house document review platform, we saw an opportunity to leverage the software for compliance and HR investigations. Prior to Relativity, the investigator would obtain a copy of the raw data from PCs and file shares, along with a cloned mailbox on the live system to conduct their investigation. Not only was this inefficient from a search and review perspective, but it was risky for both the investigator and subject of the investigation as far as potential data integrity claims were concerned. We started requiring investigators to use Relativity to conduct their investigations after receiving a training session on how to use the tool.

Now that we are a few years into this process, the compliance teams have really embraced Relativity and all that the platform offers. We are utilizing the analytics and dashboard features to enable investigators to quickly discern whether or not an event report is substantiated by the data. Recently, we have also started to take a proactive approach in regularly monitoring email communications from high compliance risk user populations to identify potential violations or opportunities for training to prevent a non-compliant behavior.

Defensible Deletions

We have orphaned data in our environment due to poor information management practices in the past, as is common in most corporations. Recently, we reached a point where an executive sponsor and motivated IT staff were willing to initiate clean-up within the organization. Data cannot be deleted without considering legal hold obligations just because it is old and the data creator/owner is no longer employed by the company. Enter eDiscovery tools for the solution!

We successfully developed a defensible deletion process where the deletion candidates are run through the eDiscovery processing tools and then searched for responsiveness to litigation holds. Data that hits on search terms is collected to a litigation preservation area. Then the approval is given to proceed with deletion in the production environment. It’s a win-win – the business group can delete data they no longer need while the legal group ensures compliance with legal hold obligations. Use of eDiscovery tools for this application have turned a potential headache into a relatively smooth and efficient process.

This is just a sampling of ways that law firms and corporations are thinking outside of the eDiscovery box to enhance ROI on investments.  If you have stories you’d like to share on unique ways you’ve leveraged technology, please send them to Susan McClellan – smcclellan@iltanet.org<mailto:smcclellan@iltanet.org>.

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