As the dust settles on the 2008 Socha-Gelbmann Survey, it is perhaps useful to pick out a couple of the conclusions which particularly affect UK corporations, law firms and suppliers. As I have reported elsewhere (Project sponsors ranked by Socha-Gelbmann) those who sponsor the e-Disclosure Information Project were well represented in the rankings tables, with Anacomp, Autonomy Zantaz, Epiq Systems, Guidance Software, LexisNexis and Trilantic all appearing in one or more of the charts (the links, incidentally, are to their respective press releases on the subject).
George Socha and Tom Gelbmann have written a commentary on the market as it appeared to them following this, their last survey in this form. Commentary on commentary does not necessarily add value, but I highlight what they say about analysis, about a perceived shift from services to software and about staffing up to enable law firms to meet the challenges and take the opportunities which exist in this market.
As to analysis, the authors (having first referred to the benefit to consumers – that is, the corporate clients – in the growth in information management services and software) say this:
Consumers also should take heart in the increasing emphasis on the analytical steps of the EDD process. Better and earlier analysis of electronically stored information means a greater ability to successfully navigate the EDD whitewater, from the initial turmoil of early case assessment through the class 5 rapids of review and over the falls of production and presentation.
The EDRM definition of analysis is
the process of evaluating a collection of electronic discovery materials to determine relevant summary information, such as key topics of the case, important people, specific vocabulary and jargon, and important individual documents
It is to do with discerning knowledge from a large body of collected documents. Knowledge is, of course, very different from information – a useful analogy (not mine, alas) is that a camel laden with books and paper carries a lot of information but has no knowledge.
In the EDRM diagram, analysis is shown as a stage which follows the others. When I talk about the model, I stress that its neat stages do not necessarily imply either that they are all necessary or that they must inevitably follow in the sequence shown.
George and Tom imply either that newer technology allows us to bring the analysis stage forward or that users are getting better at applying thoughtfulness earlier. It is good news for the consumer partly because more and earlier analysis should mean less review. In the UK courts, where there is the additional pressure of an early and court-led reduction to essentials, better analysis tools make the difference between compliance and non-compliance with rules which, we hope, are shortly to be supplemented by a Technology Questionnaire for completion as soon as the Defence is served.
The second point concerns a shift both as between different types of provider and as between the corporates and their lawyers. Socha and Gelbmann say:
We see a shift in the market from a primarily services-based approach to one where software plays a substantially larger role, which also bodes well for consumers. Some software is aimed directly at consumers, for example, helping them identify, preserve and collect ESI themselves, or giving them enhanced tools for managing the overall litigation hold process. Other software is aimed primarily at EDD service providers, consulting groups and law firms, promising greater reliability and improved efficiencies, both of which should benefit consumers.
Lots of factors are buried in here. The shift towards hosted solutions means less reliance on techies with white coats within organisations, whether law firms or corporates. That in turn makes software suppliers, who now control the data, the people best-placed to do the ancillary work. Corporates are waking up (albeit rather slowly in the UK) to the idea that they can help themselves by controlling the data in situ, with their own resources and therefore with less dependence on either their lawyers or providers.
This does not mean that either the lawyers or the third party providers are out of a job. Recent US decisions (O’Keefe, Victor Stanley and, at the beginning of July, Peskoff v Faber, all point to the serious downside of getting it wrong – making inadequate searches, waiving privilege, failing to deactivate deletion processes, for example – and it is a bold company which substitutes initiative for proper advice. Nevertheless, the installation of network-based management and collection tools – preferably with a lawyer as part of the roll-out team – is an obvious trend. Lawyers in the UK can either go with this and be part of the process, or be left out. Rather too many are taking the latter course by default.
Allied to this, in the US at least, is the final point I will pull from the article – lawyers are raising their game, acquiring new skills and offering new services. Socha and Gebmann put it thus:
Law firms aggressively sought to expand the breadth and depth of EDD-related services they offer. They, along with services and software providers, have been promoting litigation readiness and early case assessment. When and how corporations will respond remains to be seen.
A certain cadre of law firms spent the year beefing up their EDD capabilities. They added, or tried to add, e-discovery staff at all levels. They strove to buy or build attorneys who can focus on EDD, and have sent those attorneys into the market to educate current clients and draw in new ones.
They sought better EDD directors, EDD project managers, EDD anything. As reported last year, however, the major barrier to growth in this area is the ability to find, train and retain competent and qualified staff. Turnover and talent migration from organization to organization continues at a high rate.
These are the firms who seek to pre-empt the shift of work either to non-lawyers or into the clients’ own teams by extending their service offerings beyond the traditional role of lawyering. This is the working out of Professor Richard Susskind’s prediction in his book The End of Lawyers, that the work traditionally performed by lawyers will break into “identifiable and discrete pieces” done by whoever has the skills to do each of those pieces economically and efficiently (see my post Richard Susskind the End of Lawyers from which you will see that Socha and Gelbmann’s conclusions bear out predictions which I made nearly a year ago).
There is no sign yet, I have to say, that UK lawyers recognise either the threat or the opportunities implicit in all this. If I was Head of Legal at a corporate client, I would be pressing to know what my lawyers were doing to prepare themselves – and me – for the changing times. For some, the crunch will come with a litigation case or a regulatory enquiry. For others, it will be privacy or data protection which will hit them between the eyes when they are not ready.
If I were the lawyer, I would be recruiting someone to help me answer that question.