Steve Cole sits down with CCBJ to discuss critical success factors to ensure bringing e-discovery in house runs smoothly and yields the anticipated rewards for corporate legal teams.
CCBJ: To start off, Steve, tell us about your background and what sparked your interest in legal technology.
Steve Cole: I’m a lawyer by training. I litigated for about six years, working on mostly large, discovery-intensive matters. As I’ve loved technology ever since I was a kid, I was drawn to emerging legal technologies, realizing that a lot of work I was doing could be more interesting, and more fun, using computers. E-discovery didn’t really exist when I was handling these large matters; my focus was on collaboration and knowledge management.
What gets me excited today is the marked acceleration of innovation in the legal vertical. My long-awaited expectations, especially regarding the ability to leverage artificial intelligence in our practice by simply clicking a button, are now a reality. We can turn on AI and lawyers are able to understand their case in a matter of hours, or maybe a couple of days, versus the few weeks of review it previously took to get their arms around the subject, and the corpus of their data. This is the real, current state. It’s no longer something that’s aspirational, and I’m just personally excited to be involved in this transformation of our industry.
In your role, you meet with in-house legal teams regularly. What are the greatest challenges they are facing, and what advice do you provide to address their larger issues?
Meeting with corporate in-house teams across so many verticals has been my absolute favorite aspect of my role. Corporate counsel are increasingly being asked to control costs and to do more with less. As you might expect, this has put pressure on key employees, and talent retention is very much on GCs’ minds. Doing more with less involves identifying where and how work actually gets done and exploring how it can get done more efficiently.
The advice I offer to anyone beginning this journey is to identify how people are spending their time, and whether the right work is being done by the right person. Are there routine but costly non-strategic areas that can be outsourced? And, perhaps even more impactful and cost effective, what tasks can be automated with technology? When lawyers can automate repetitive tasks, they can focus on more strategic activities that require legal judgment—work that is related to the reasons they went to the law school.
Regarding legal technology selection, especially as it relates to e-discovery, what are some of the most important criteria to keep in mind when evaluating a product?
First, be open to evaluating new e-discovery options. The world has absolutely changed, and the number one mistake corporations make is accepting the status quo. A lack of innovation with respect to e-discovery exposes you to unnecessary risks, unnecessary outside counsel costs and unnecessary burden on already-stretched teams. You want technology that helps find key evidence in the quickest way possible, with the greatest accuracy, and at the lowest total and predictable cost.
One key element of such technology should be powerful early case assessment capabilities that will allow you to quickly visualize case trends, cull irrelevant data and find potential evidence quicker. Being able to learn these key facts quickly, rather than after weeks of costly review, will not only likely save you on review costs, but enhance your counsel’s large-case-strategy performance.
Other criteria to look for are tools that allow greater doc-to-doc speeds and offer full-time AI support and quality control, thereby ensuring both speed and accuracy.
Finally, ease of use is a big factor. Ask yourself how quickly you can have teams efficiently using the platform. While it’s hard to assess the frustration factor in software, when tools are both enjoyable and easy to use, you gain far greater adoption and impact.
When it comes to saving time and cost, something that is top of mind for most teams, what strategies are you seeing work well?
First of all, taking control over the process, the technology and the review team will drive the greatest efficiency and it sets you up for future gains. You should be able to create a scalable repeatable process for all matters — both big and small. And, there is no reason you can’t save 30-50% off each review, if you leverage the right processes, the right technology and a team of reviewers who know how to optimize that technology.
Outside counsel costs will likely be the biggest line item in any matter, so make sure they adhere to the review strategy and protocol and escalation process that’s articulated in a written playbook. And make sure a competent but lower-cost vendor—not outside counsel—handles the heavy lifting part of the review.
You will also want to make sure that your cost structure is unitized, or bundled, as opposed to just paying hourly rates for review of documents. Another way to save on review time and costs is by leveraging advanced early case assessment (ECA) tools to cull out a lot of what’s clearly not responsive. It’s best if the ECA tools are fully integrated directly into a platform, which allows for easy, powerful searching, additional culling and more robust data—in short, a lot more usability, and the ability to be a lot more flexible in how you approach ECA.
Finally, cross-matter AI can help in-house teams repurpose work product from one or many prior matters, which can significantly reduce cost while speeding up the finding of evidence from similar litigations.
A recent ACC survey concluded that despite increasing reliance on online platforms for internal and external communications, such as Slack, Teams, Facebook, Zoom and WhatsApp, many companies have been slow to implement formal practices surrounding the retention and preservation of online data. In fact, over 70 percent rated their organization as immature or intermediate in this area. How should e-discovery teams handle the ever-growing types and amounts of data?
To find evidence, in-house lawyers must dig deep and inquire about all of the potential ways corporate employees are communicating and collaborating. Having clear and up-to-date document retention and litigation hold strategies that are both understood and adhered to is helpful. Partnering with IT is, of course, key, as is understanding the organizational culture and how information is created. A major problem with many of the newer collaboration applications you mentioned is formatting. Data exported directly from Slack and other such tools can sometimes be nearly indecipherable. In its raw format, extracting and presenting relevant information from a multi-person stream with links, redactions, graphics and shared files is complicated, to say the least.
Reviewing inadequately formatted data is risky and potentially costly. For example, some technologies will simply render Slack channels in a manner that arbitrarily separates threads into separate, hard-to-review files.
I would advise making sure you leverage a technology capable of recreating the visual structure of Slack but in an intuitive and readily viewable format. For example, DISCO worked hard to develop an environment with workspaces and full channels, complete with links, usernames and active contacts, recreating a viewer that provides a holistic picture of the Slack ecosystem so the reviewer doesn’t have to toggle through multiple files or create content, and instead can easily scroll through the communication stream in much the same fashion as an original user could have. This ease of use reduces the time it takes to gain insights and uncover relevant custodians and topics of interests.
Some corporate legal teams may be considering bringing e-discovery in house. What are a few critical success factors to ensure this change runs smoothly, and yields the anticipated rewards?
Bringing e-discovery in-house no longer has to mean physically bringing software onto your own servers. Because of the cloud, it’s more of a concept of control, and bringing technology in-house has never been easier, less of a burden on your resources or more cost-effective. To ensure success, you’re going to want to define meaningful reporting and metrics criteria for benchmarking quality assurance and for program improvement. You should construct well-defined playbooks that follow workflows, processes and best practices. They should be accessible in writing and enforced with an eye towards process improvement as well.
You should also be mindful that implementing any new workflows or technology requires some degree of change management. Adopting intuitive, easy-to-use technology will alleviate a lot of the pushback comments associated with more complex legacy technology rollouts. That said, employees will still need training on best practices and the optimized workflows. It’s also important anytime change management is required to have a top-down mandate for each program, so make sure department leadership embraces the change and helps to support your efforts as you push innovation and change to the four corners of your department, your vendors and your outside counsel. Remember, they’re all going to be responsible for embracing the processes and new technology you’ve laid out.
Beyond traditional e-discovery, what other uses of search-related technology do you foresee, such as within investigations?
The art of the possible is expanded when an organization’s universe of information can be thoroughly and easily searched and consumed. And by “consumed” I mean effectively reviewed, categorized, understood and leveraged. During a recent CLOC webcast, Meredith Williams-Range, Chief Knowledge and Client Value Officer at our client Shearman & Sterling, mentioned that “investigatory technology” is a more apt description of our product, and I agree with that. When you put that kind of descriptor on it, you can envision myriad use cases beyond just basic litigation e-discovery, including to speed up internal investigations, HR investigations, regulatory responses, GDPR/data subject access requests, data breach requests and even subpoena requests. There are so many emergent use cases, particularly around privacy and compliance, that would benefit from powerful e-discovery live search capability.
Metrics are becoming increasingly important in the operations of an in-house legal team. What metrics should be considered for e-discovery?
There are several metrics that review vendors should be tracking for quality purposes, but there are also a few simple metrics that any corporate counsel team would find helpful. They include utilization reports (who’s on the platform and how are they using it?); ECA cull and cost avoidance rates (how effective are you at reducing data prior to incurring review costs?); document review rates; a metric on how efficiently the platform and the review team work together on a given review (this is ultimately a large factor in your cost function); and unitized cost reporting (how much did it cost to review each document?).
Quality reporting that calls out metrics such as error rates and overturn rates is important for several reasons. A higher overturn rate usually means more involvement by your costly outside counsel. It means that more attention needs to be paid at the review stage, which is expensive. It also could raise issues of risk. And when we’re talking about monitoring error rates and overturn rates, it’s very important to properly identify privileged materials; given the importance of not producing privileged documents, I would separately monitor privilege-related error rates and overturn rates.
Circling back to the bringing of e-discovery in-house, how would you rate departments’ use and adoption of technology today versus 10 years ago?
If you look at maturity models, and where corporate legal departments were on such models, you can absolutely see—from policy, protocol and technology perspectives —an absolute evolution towards driving greater efficiencies. These efficiencies are being driven largely by leveraging enterprise grade technologies, utilizing the right resources in the right locations and through greater use of metrics and benchmarking.
In a nutshell, organizations have never been more open to technology, including embracing the cloud. Just a few years ago, many of the global banks I worked with had a policy of not pushing information out to the cloud. Now, computing in the cloud is commonplace. It’s an exciting time because organizations are able to increase a lot of their capabilities in ways that they couldn’t with single-point software.
I’ve also observed more “technology natives” coming up the ranks; people who are very comfortable with metrics, spreadsheets and online tools that help accelerate and improve processes. Legal is catching up to where other departments have been because the talent that they are acquiring is very well-versed in technology.
What would you most like corporate legal executives to know about DISCO? What sets your solution apart from others?
DISCO is a paradigm shift in the marketplace. It helps lower risks and costs by fully leveraging the power of cloud computing and AI technologies. However, it’s not just a great technology, it’s a solution lawyers love working on—and that’s a huge differentiator. The net result of its robust yet easy-to-use capabilities is that you can unearth key evidence often much faster, at a lower total cost and with less risk. Finding evidence in days versus weeks means your counsel can make important strategic decisions earlier on, and arrive at better outcomes for your organization.
It is also important to note, the DISCO AI, which helps on a single case, can also be deployed across all matters. Cross-matter AI allows your teams to apply learnings from prior cases to provide lift in future work, including early cases assessments and privilege screenings to name a few. Lawyers love DISCO, and I am personally proud of our exceptionally high client satisfaction scores.