My heading comes from an article called The Data Explosion at Forbes.com (you need to sign up as a member, or more easily found here) about H5, the San Francisco company specialising in large-scale document analysis and the management of information risk.
I cheat a little. The full quotation is “once you teach H5 this stuff, it goes a lot faster than people” and comes from a partner at Boies Schiller & Flexner. He was not suggesting that H5 have anything to learn about the use of technology to dig out the documents which matter. “This stuff” is the knowledge about the client’s business and the subject-matter of a particular case which H5 collect as their starting point for an assignment.
Forbes describes the H5 approach thus: “H5 huddles with lawyers and a corporate organizational chart to define the theory of the case and which employees might have taken part in it. Then H5 lawyers, engineers and linguists draw up patterns of words that might be used to express various elements of the scheme. Finally it dumps the entire database into its parallel processors and finds every document that could be relevant.”
Rather different, then, from the standard approach of litigation support providers on either side of the Atlantic, whose role, in general, is to take in a company’s paper and electronic documents, turn them efficiently into searchable data and images, and to put them into a software application for the lawyers to review.
There is plenty of room for both approaches in a business which is growing very fast. The Forbes article quotes Forrester Research as estimating the e-discovery business at $1.5 billion last year. My interest in the article is not just to laud H5 (who can do very well without my help) but because it has a bearing on three areas I keep coming back to.
The first is that it costs money to find, review and flag for retrieval the key documents for litigation. That expense marches in proportion to the size and importance of the case (that is, it is as true pro rata for a small case as for a big one) and arises whether you use technology or teams of people. Technology, as my headline puts it, “goes a lot faster than people”. “Faster” is more than merely reaching deadlines in time – it is cutting the costs to clients, not just in chargeable hours (on which, I appreciate, lawyers may have mixed views) but in the standing costs of unresolved disputes. The investment in technology to run a case is more obvious largely because it is quantifiable up-front. What actually matters is the overall cost (to say nothing of the outcome), which goes beyond the lawyers’ fees and disbursements.
The second is a horses for courses point (or more than one way of skinning the cat if you like animal analogies). Some cases need thoughtful input from the likes of H5, not necessarily “to define the theory of the case” as Forbes puts it, but to take the facts, the legal analysis of the issues and the commercial context and to distill what matters from the sources of information – and “what matters” may be more than just formal compliance with the court rules. Others just need to give Disclosure efficiently as the core function, in a way which is usable before Disclosure to advise on prospects and after Disclosure to prepare for trial.
The third is related to both expense and horses for courses. Do you keep the work (whatever its scope) in house or outsource it? Law firms, like companies in the wider corporate world, have different approaches. Some take every opportunity to bring every aspect of a job into their own business. Others take the view that their core business is the practice of law, and outsource everything which does not directly involve that. What works for one, firm, one client or one case will not necessarily be right for the next.
The Forbes article quotes U.S. Supreme Court Justice Stephen Breyer, a guest at a grand H5 reception, as exclaiming of a large bill for discovery: “We can’t do that. If it really costs millions of dollars, then you’re going to drive out of the litigation system people who ought to be there.” That, I think, misses two points, both made above. One is that, with document volumes growing, and discovery obligations becoming more onerous, even routine disclosure costs money, however you tackle it. The other relates to the context – what turns on the outcome of the discovery exercise?
The sub-heading to the article is “Lawyers charge a lot for discovery and aren’t even very good at it”. Good eye-grabbing stuff, no doubt, but not wholly fair. It relates to exercises in which lawyers and computers competed against each other to find relevant documents from the same starting point and in which the computers won.
A more sensible analysis of the purpose of using technology is provided in the body of the article by a lawyer in a Chicago firm. “You’re faced with hiring an army of lawyers to page through this stuff or using technology to give you a good first cut”. You can scale this right down – reduce the volumes from millions to a few thousand, and the “army” of lawyers to a handful. Given that most of those documents will be electronic anyway, it seems nuts to make that first cut by any other than electronic means.
Whether you do it in house or send it out, whether you analyse it or just weed and list it, whether you spend £1,000 or £1,000,000 or more will depend on many things. What will do it faster is important but not conclusively so.
What is cost-effective is more important than what the cost is.
If you want help, whether to turn your documents into a litigation database, to choose the right people to do it for you, or to set up an in-house team to do it yourself, please contact me.