You would not think that the apparently routine job of collecting data for discovery could be a career opportunity. It happened to me, some decades ago, when a client pointed to several feet of shelved boxes and suggested that there “might” be some discoverable documents in among the rest. We were already under a 7-day Unless order – unless we served our list of documents in 7 days our claim would be struck out. A glance into randomly-selected boxes suggested that there were quite a lot of potentially discoverable documents in there.
I was then writing software for listing documents (those were the days when every entry had to be typed into a word processor and manually sorted) and I decided that, untested though it was, it gave us our only chance of getting the job done in time. It did, and we beat our time limit. Shortly afterwards, I gave up lawyering and devoted myself to developing discovery software. That collection was, in a curious way, a door to a new career.
I thought of that while speaking to Ari Kaplan of Ari Kaplan Advisors last week. Ari has written a report for Relativity called Maximising Collections in an Evolving eDiscovery Environment. As always with Ari Kaplan’s reports, it is based firmly in material directly taken from those who actually have to do the work, and Ari’s great skill lies in his ability to extract themes from a wide range of views. What did Ari think was the most interesting or important point to come out of his research?
The first thing Ari mentioned was to do with opportunities for individuals in present circumstances. This was partly a Covid lockdown point – that times of urgency and emergency promote those who bring solutions – but partly also the suggestion that the collections problem was so important that there was a greater role for those who could fix it. It was, Ari said, a “dynamic environment” which needed leadership.
For much of that intermediate period between the paper days of my youth and today, collecting data for eDiscovery was just a stage at the beginning of the EDRM (eDiscovery Reference Model), along with identification and preservation. For some, it is still seen as a straightforward task – one of Ari Kaplan’s interview subjects said that their focus was still on email.
Most have bigger problems: lockdown, with almost everyone working from home, magnified all the existing problems – volumes went up, security issues increased, data is created in ever more formats on a much-increased set of devices, and the need for collaboration tools has increased as staff and clients adapt to working remotely. The signs are that this will continue when formal Covid restraints are lifted and a new, perhaps hybrid, working life becomes the norm, for some at least.
Meanwhile, demand continues to rise – “demand” in this case being litigation, investigations and regulatory interventions. It does not end there – lawyers engaged in non-dispute matters are realising the value which lies in the data, and in the skills and tool for mining that data
Technology does its best to keep up, both at the data creation stage (e.g, as new collaboration tools emerge) and for collections, with software companies developing and acquiring tools to aid collections. Relativity Collect is an example. The pandemic has forced organisations to adapt both their tools and their practices – a recurring point in Ari Kaplan’s report is the need to keep up to date with technology developments and the abilities of rival products. New skills are needed, not merely for the mechanics of collecting data but in understanding and anticipating the needs of lawyers who are themselves becoming more aware of the possibilities and more sophisticated in their demands.
Despite the growing problems, the overall tone of Ari Kaplan’s report has encouragement to offer. Identification, preservation and collection are no longer the first stages of the EDRM – Information Governance has long superseded them as the starting point for attention, offering a chance to refine data collection as a matter of policy before any specific collection issue arises. There is an increased focus on targeted collections (that is, that someone thinks through what needs to be collected in place of the old habit of collecting everything first), on culling data before collecting it, and on making queries in place.
The cloud made it easier to upload and transfer data; the pandemic has made it necessary, both because the endpoints now extend to every worker’s multiple devices at home and because travel is harder than it was. There has been a development focus on connectors which allow the integration of different platforms into a single system. The report suggests that people are starting to see a value in having a better understanding of the tools, the data itself, and the people needed to develop and manage the processes, both for governance and for collections.
As well as making more informed choices about their software tools, organisations are increasingly turning to service providers. One of Ari Kaplan’s interview subjects said “Hiring someone who does this work as a core business and understands your industry, data stores, and how to get the data is critical” . The alternative is to hire or train people to do the job in house. Either route expands the pool of people with skills relevant to the task.
As I was writing this, I saw a tweet encouraging people to obtain specialist qualifications from ACEDS (the Association of eDiscovery Specialists). The ACEDS Board is chaired by none other than Ari Kaplan, who knows what he is talking about at both ends of the skills question – asking who is there to do the work and helping to encourage new entrants into the business.
A lot has changed since I was shown that shelf full of paper in boxes, but the problem is broadly the same. In photocopiers and early word processors we had new tools for multiplying the creation of documents. “Document management” consisted of storing boxes of paper, and the focus was on how to do that as cheaply as possible, with occasional desultory exercises to call back boxes and weed the contents. Discovery demands and rules had been unchanged for years. The technology focus had not yet been turned efficiently to the problems of volume and search which growing volumes would cause.
Ari Kaplan’s report is a very good snapshot of where we have got to since then. It shows how the last 20 months have simultaneously increased the problems and inspired new ways of dealing with them. Its main effect, I hope, will be to encourage organisations to look again at the whole data problem from creation to disposal through the words of others, from those who are cool with their systems and processes to those who know they have a problem to face up to. Those thinking of acquiring new skills and jobs might do well to consider data collection as the area to focus on.