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The EDiscovery Outcome Economy Part One: Why We Need to Focus on Case Insights

To be valuable, eDiscovery needs to ensure the greatest usability of all data reviewed and produced. Every dollar spent should buy more than mere compliance; it should buy valuable case insights.

While it is easy to focus on making a defensible document production, eDiscovery should not stop there. This post is going to discuss why it is critical to focus on providing value in eDiscovery by giving the trial team a compelling case narrative and making it easier for them to uncover the key facts. Next week’s post will get practical on how it can be done.

What is the “Outcome Economy”?

For several years our eDiscovery Group has been working on bringing more value to the document review process. Recently, I read a book that shed a fresh light on this issue with a modern parallel.

In The Outcome Economy, Joseph Barkai discusses the way in which the Internet of Things (IoT) will change the way that companies design products. (http://theoutcomeeconomy.com/) For those who may not be familiar with the IoT, it simply refers to the many commercial products that are connected to the Internet and feed data back on the product’s use, often without the consumer’s direct input.

Barkai describes how manufacturers are embedding powerful sensors on a wide array of consumer products. These sensors allow manufacturers to receive real-time feedback on how consumers actually use and interact with their products. The sensors will also “push” new content and services out to the products to allow the products to “evolve” to better meet their users’ changing needs and preferences. Barkai gives the following advice to manufacturers who may not have realized the impact the IoT will have on their market:

“You are probably not aware of it but, in all likelihood, your product organization suffers from acute myopia – almost all product organizations do. What I mean by myopia is that once your product is sold or installed in the field, you lose sight of its performance, how users are interacting with it, and how well it meets your customers’ expectations….”[*]

For Christmas this past year, my mother-in-law bought our family an AmazonTM EchoTM device. Since then, I have become acquainted with AlexaTM and enjoy my morning “flash briefings,” songs on verbal command or “this day in history.” When you combine that with my AmazonTM purchase history and my GoodreadsTM feedback, AmazonTM has more insight into what I want next Christmas than my kids do.

Today, companies have more information than ever on consumers, including how we interact with products long after the purchase. This brings me to a key question that every corporate client who pays an eDiscovery invoice should ask themselves: How much attention is being paid to what happens after the defensible document production is delivered to my legal team?

The EDiscovery Factory Outcomes

EDiscovery undoubtedly manufactures something: the document production. In fact, all eDiscovery activities – legal, forensic, processing, review, oversight – constitute what we refer to as the eDiscovery Factory, whose current product is all-too-often limited to that defensible final document production.

The high cost to generate a final production has gotten so much industry-wide attention that few experts have noticed that almost all these costs are incurred primarily for procedural compliance. EDiscovery does not have to be just an exercise in risk-mitigation. EDiscovery’s real “outcome” should be the legal team’s enhanced insight into the case story, and the advantages this insight provide in achieving better legal results for the client by facilitating interaction with the case documents.

What would most corporations expect from eDiscovery if the costs were more “reasonable”? We think the following are minimum expectations based on current technology and best practices:

  1. A defensible production, satisfying the litigant’s compliance obligations. This is the bare minimum.
  2. A compelling case narrative to the legal team well in advance of the final production to opposing counsel.
  3. Simpler case management by making it easier for the legal team to interact with the key documents and deliver better legal outcomes for the client.

A compelling case narrative implies more than just delivering a massive final production for the legal team to begin reading. Your legal team, like all senior professionals, needs information organized in a format that leads to clear understanding and effective decisions. We call this “Actionable Legal Intelligence” or ALI.

ALI implies the active engagement of the legal team with the data from multiple perspectives – timelines, issues, key players, products, entities, conversations – leading to a faster, clearer understanding of the small set of key documents that will be dispositional to the case. The document production should allow the trial team to leverage the knowledge gained by the review team, rather than allowing it to be lost when the review is over, and having to start over from scratch.

That’s the key challenge in driving more value from your eDiscovery spending. How do those who manufacture that final production learn how different legal teams “consume” that information to become more effective advocates? Learning how to make your eDiscovery product more “user-friendly” requires some key insights that only come from the legal teams themselves: How did the team find the key documents? What “key” documents turned out to be dead ends? How did they organize those documents into competing narratives? How did they select the most compelling narrative? What delayed this process, and why?

These and many other questions can only be answered by observing how the legal team actually uses the products of the eDiscovery Factory. Unfortunately, few professionals have discovered how to embed “sensors” in the final production to better understand the dynamics of this interaction – which is at the very heart of the litigation.

This lack of “post-purchase” visibility led our team to design and integrate new tools and methods throughout the eDiscovery process, to enable near-real-time feedback from the legal team. Our LeanDiscoveryTM method allows the legal team to guide our search for the case narrative on their behalf long even before the full-scale document review begins. By re-engineering the eDiscovery process from the legal team’s needs back to how we manufacture the document production, we can achieve better synchronization with our trial teams and enable better client outcomes.

In short, we should expect more value from every eDiscovery dollar we spend. We should expect better outcomes, continuous improvement, and demand that better legal outcomes be evolved from how our consumers (the trial team and client) actually use the product.

How we can do just that is the subject of next week’s post.

[*] Barkai, Joseph, The Outcome Economy, pp. 68-69 (2016). The core thesis of Barkai’s book is simply this: “Companies in the outcome economy are no longer competing through selling cheaper and usually – but not always – better products and services. Instead, they strive to provide products and product-based services that bring meaningful, measurable results for their customers.”