On July 18, 2016, Allegory founder and CEO Alma Asay moderated a panel at the ING3NIOUS 2016 NorCal eDiscovery and Information Governance Retreat, exploring the next tipping point in litigation technology. The panel offered valuable insights, summarized below, on the increasing challenges of litigation management and how technology can help.
Adapting to corporate counsel's expectations
Clients increasingly expect law firms (and lawyers) to be proficient in technology that makes them both effective and efficient, so choosing the right technology has never been more important. More and more, this means not only making e-discovery choices, but also evaluating how technology is used to manage litigation through depositions, summary judgment, hearings, and trial.
As Chip Nierlich, Partner at Gibson, Dunn & Crutcher, explained:
"Once you have documents, what do you do with them after e-discovery? It's important, especially to us as outside counsel, because clients keep telling us they want us to do more with less."
The panel highlighted key points to consider when choosing litigation technology:
- Efficiency and effectiveness
- Learning curves and user adoption
- Integration with existing tools (especially e-discovery services)
As a Senior Project Manager at Perkins Coie, Sam Kepler highlighted some of the challenges she has encountered in wrangling information outside of e-discovery, including:
"One of the most recent challenges I've had is this whole idea of collaboration with other defendants, and how you use your work product to assist in the trial prep. If you need to share that data, that work, how do you get it to a place that has a dynamic workflow?"
The panel advised that, if you don't plan ahead, you end up down the road with the case organized in a way that's "not helpful to tell the story," which, of course, may be detrimental to the outcome of the case.
Keeping teams on the same page
Panelists also stressed that consistent methods across team members, and across cases, for organizing and tracking documents are needed because ad hoc file and folder structures that other team members can't follow result in wasted time and double-work.
Head of Administration & Practice Support at Clyde & Co, Rhonda Jenkins, brought up important points regarding familiarity with technology and how user adoption affects best practices. Encouraging the use of cloud technology, she shared her observations on how lawyers currently manage documents:
"For some users, it's the thing they love and know best, which is their shared drive... You'll find people have their pockets of documents that they've tucked away on network drives, and someone else on their team may have done the same thing, and so on and so on, and you have this document anarchy."
Addressing security concerns
As the panel discussed technology requirements and gaps in the industry, Seth Schreiberg, Counsel at Uber, emphasized considerations of security and control over sensitive documents, especially important in legal tech:
"We need something that addresses our problem with 'oversharing' our documents. You share a document in a review platform and it's relatively secure, you want to grant licenses to people, that's great. When you start getting requests from lawyers or experts... things start getting out on thumb-drives, and then you lose control."
Keeping clients happy
The panelists also spoke on the practical challenges of selecting litigation software, such as who pays for the technology, who on the team decides what to use, and when to have those discussions. They agreed that adopting the right technology early in the case avoids awkward conversations with clients about why a case is not organized, and increases the chances of winning. In the words of Chip Nierlich:
"We're trying ultimately to prepare a case for trial and win. We want to make sure we optimize our chance for success as much as we can, for as little money as we can... At the end of the day, you want to make your client happy."
Critical to the implementation of technology is bridging the gap between e-discovery/technology specialists and lawyer/paralegal litigation teams, to ensure that the right technology is implemented. The panel offered suggestions on how to effectively bridge this gap:
- Involve technology and e-discovery professionals early in the case, and collectively develop case workflows at the outset.
- Bridge gaps in understanding how documents will be used (for example, have the litigation support team read the Complaint and understand the goals of the case).
- Ensure that Project Managers take responsibility beyond e-discovery and don't fall back into "well, we weren't involved in that part and don't know."
- Establish a common platform, which can bridge the expertise gap by establishing a common language across litigation & technology professionals, as it relates to the core litigation activities.
Thank you to our panelists for a lively discussion and for their helpful insights into how technology and best practices can help litigation teams be as effective as possible. Quotes may be edited for grammar and clarity.
Full Description of the panel sponsored by Allegory Law at the ING3NIOUS 2016 NorCal eDiscovery Retreat:
The Next Generation of Litigation Technology: Looking Beyond eDiscovery
In the first decade of this century, eDiscovery reached a tipping point, giving rise to a wide and ever-increasing range of eDiscovery tools and services to help litigation teams triage data based on what is "relevant" to a dispute. But litigation does not start or stop at the eDiscovery process and, as the volume of data filtered through the eDiscovery process has increased, so too the amount of "highly relevant" key documents and other information critical to winning a case has grown exponentially. This panel will explore this new, critical tipping point in litigation and how lawyers, paralegals, and other litigation professionals try to wrangle thousands – often, tens of thousands – of “highly relevant” documents to make their case through depositions, summary judgment, hearings, and trial.