One of the continuing themes in eDisclosure / eDiscovery, in the UK as in the US, is about finding (and then keeping) people with appropriate skills. Wherever they work, eDisclosure people need to have their feet on two sides, one to do with legal procedures – the timelines and deadlines, the formal requirements, the resource management and the control of costs – and one to do with technology. That has its own processes which involve far more than “pushing buttons” (I use that expression because many lawyers use it as shorthand for the whole range of computer and process functions, apparently assuming that this is all you have to do).
eDisclosure (I will stick to the English term) is a new discipline, attracting people from law and from IT as well as from other areas. Legal purists dislike the term “the eDiscovery market”, but it has all the elements of a market: lawyers in corporate legal departments or in law firms have a problem to solve, and a new industry of software and services providers has sprung up to serve them, competing with each other with their differing technologies, their range of support services and, not least, the quality of the people whom they employ.
Part of that competition, as I implied in opening, is that both sides of the divide need to attract the right kind of staff. It is not unusual for people to cross the divide, moving from a software and services provider into a legal department or law firm, or vice versa.
One such is Stephanie Barrett, who has recently joined Navigant as a managing consultant after seven years of delivering eDisclosure support at a London law firm. What is it like to make that move, I wondered. What are the similarities and differences between the roles? Is there a “dark side” and, if so, which side is it?
Chris Dale: Can you start by telling us what your role is at Navigant?
Stephanie Barrett: My role as a managing consultant at Navigant involves providing project management and consulting support, overseeing each stage of the EDRM model, along with advising on processes to maximise efficiencies and achieve value for our clients.
Chris Dale: Tell us how you first got into litigation support in a law firm? What background did you bring to it and why did interest you?
Stephanie Barrett: My first introduction to the world of eDisclosure was 13 years ago, working for a document scanning and data entry bureau. I earned my stripes scanning print-outs of emails and then manually entering the dates, subject lines, sender and recipient information in to a database before releasing it for review. I had the opportunity to work in-house at a London law firm for three months and so was introduced to the lawyers’ world, with a front row seat on the disclosure production process.
Whilst I had always found the technical side of my work very interesting, I found the legal obligations involved in this even more fascinating. Technology is often quite black and white but solutions for eDisclosure are anything but, and I like that. My big thing has always been problem-solving, and you don’t get much better exposure to that than managing a litigation support department.
Chris Dale: What was “new” thirteen years ago?
Stephanie Barrett: I remember the very early discussions with our clients about the concept of providing us with emails in native format, rather than printing them all out, so that we could de-duplicate them and populate the metadata fields automatically. It was the beginning of a change which cut the clients’ costs considerably, but some of them found the idea un-nerving.
Chris Dale: It is one of those clichés of eDiscovery that people who work for one side (law firm if you are a provider and vice versa) refer to the other as “the dark side”. Aren’t we all supposed to be on the same side where eDisclosure is concerned?
Stephanie Barrett: Having worked for a law firm for nearly 7 years, providing in-house support, I’ve seen how the relationship with your eDisclosure service provider can sometimes seem like a marriage of convenience. I’ve witnessed all the frustrations that lawyers experience preparing for disclosure, having to deal with areas of IT that they don’t really understand and meeting the obligations of the court, all the while trying to maintain a functioning relationship with their service provider.
Chris Dale: Lawyers do like to know what is going on, don’t they?
Stephanie Barrett: There was always that element of mystery over what happened to your data once it had been collected and handed over for processing. Even if you had a good understanding of the work being carried out, you weren’t witnessing it in action. Were there hamsters on wheels manically removing duplicates from all the PSTs?
Chris Dale: So is it really that different being on the provider side?
Stephanie Barrett: Given all that I’d experienced at a law firm which has in-house support and expertise, my decision to join Navigant was primarily because I wanted to be involved in providing support and guidance to law firms that don’t have any in-house support and are completely reliant on their chosen service provider.
Chris Dale: What does the “marriage” look like from that side?
Stephanie Barrett: Well, firstly let me dispel the main myth, this side is no darker or lighter than the other. Secondly, most of the frustrations and difficulties experienced by lawyers are, surprise, surprise, practically identical to those experienced by the service provider. While the mystery element for the lawyers is about what happens when their data is sent away for processing, the mystery over on the service side is trying to identify what the overall plan of action is for a case and what its components are.
Chris Dale: Give us some examples where the lawyers’ strategy seems mysterious to you.
Stephanie Barrett: Much of it is about the lack of communication. It’s very different when you’re not sitting in the same office as the legal team so you are much more reliant on there being a willingness on the lawyers’ part to engage with the service provider during the decision making process.. What was really in that lawyer’s mind when they proposed those tags and that review layout? Do they really know what they want to disclose? If we’d been told this piece of information at the beginning, our advice and strategy would have been totally different.
Chris Dale: Your description suggests two sets of people in contemptuous opposition to each other.
Stephanie Barrett: Not at all, though they both have pictures which the other would not recognise. To the service provider, the lawyer sometimes seems like a semi-mythical creature whom you may meet face to face only once or twice; they are an email address and a voice down the phone in a constant state of frustration – that their searches aren’t bringing back the results they wanted and that this is your fault.
Some lawyers, on the other hand, see service providers as “mere” technical experts who don’t understand that document review is horrendous; they seem to put up obstacles every step of the way and don’t appreciate that deadlines constantly move. Why is it so difficult to process data, they ask, and why are you charging me so much? How much is a terabyte anyway, surely it can’t be that many documents?
Chris Dale: If we continue your marriage analogy, it seems to me that many of the problems can be reduced if lawyers have a continuing relationship with people they know well, like and trust.
Stephanie Barrett: Given the reforms that have come in over the last few years, law firms and service providers are in this relationship for the long haul. Rather than being resistant to it, I say embrace it. Forget sides and a marriage of convenience. How about both parties coming together with shared knowledge and a compliment of skill sets, working for a common goal? Is that really so difficult to pull off?
Chris Dale: Is the balance between lawyer and technology provider changing as newer technology is developed? Many lawyers seem to fear that they will be replaced by technology, which doesn’t perhaps improve the relationship.
Stephanie Barrett: The drum-beat of Technology Assisted Review (TAR) and predictive coding is getting louder and louder, as are the beats of cost schedules and accountability. These things require new skills of the lawyers and, perhaps the need for new allies. The technology is an enabler for the lawyers, not a rival for his or her job. Budgets and costs estimates, whether imposed by the court or client, require real focus on how to get the job done on budget and providers do that all the time.
Chris Dale: Lawyers also often assume that the technology is to blame for any errors.
Stephanie Barrett: In my experience, when an eDisclosure exercise has not gone according to plan and errors have been identified, it is very rarely down to a fault with the technology in isolation. It usually comes down to poor communication between parties and not enough understanding about what was attempting to be achieved.
During my time providing in-house support I made it my business to ensure that the providers I was working with understood exactly what it was the legal team were trying to achieve. People got very tired of me emphasising the need for context but from my experience, you ignore it at your peril.
Chris Dale: How, if at all, does that change now you are at Navigant?
Taking on a role as a managing consultant at Navigant doesn’t change this position and I will, no doubt, continue to exhaust people with my desire to emphasise context. As service providers we have an obligation to gain context from our clients in order to provide an effective service and we are equally required to provide context to our clients so that they understand how and why the technology is being used. Sure, we can all provide fantastic technical solutions, but without the consultancy to go with it, I’m not interested.
Chris Dale: How would you summarise the best way to get a project done?
Stephanie Barrett: When I’ve run training sessions on eDisclosure for lawyers, I talk about the technology out there and the solutions that could really help reduce the workload, but spend a lot more time hammering home the message about communication, planning, knowledge sharing, context and always thinking ten steps ahead when you are making a decision about a review. The advice and best practices for service providers are no different.