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The EDiscovery Outcome Economy Part Two: How to Uncover Value After a Production

To ensure value, eDiscovery projects should look to both provide a compelling narrative to the trial team, as well as continuously improve case outcomes by facilitating case management.

The goal of eDiscovery should be to provide value in enabling better client outcomes. As we talked about last week, value implies more than just a defensible production, which is the bare minimum. Value from eDiscovery comes in two additional ways: (a) providing a compelling case narrative as work product after the review, and (b) facilitating the trial team’s interaction with the data by a thorough understanding of the needs. Last week, we talked about why this is important. This week, we will cover some practical impediments that exist in the eDiscovery industry at large, and then cover some practical solutions to the challenge of providing better eDiscovery value.

Impediments to Facilitating Better Outcomes

Why has so much of the eDiscovery industry stopped short of delivering real client value?

Part of the answer is that eDiscovery’s intrinsic nature as a “manufacturing process” activity has been poorly understood across the legal industry, directly leading to high costs and inconsistent results. Stated differently, if each eDiscovery project is treated as a special snowflake, ignoring that eDiscovery is a repeatable process, the variability of the results/outcomes will get the attention. If eDiscovery is seen clearly as a manufacturing process, however, process deviations will get the attention.

The second reason is that as the volume of electronic documents has rapidly increased, legal teams are being increasingly overcome by large amounts of “relevant-and-responsive-but-who-cares” information. Obviously, not all data in a production is created equal from the standpoint of the case or its outcome. Every good trial lawyer has watched as the case data goes from hundreds of thousands of pages in a production, to the ten critical trial exhibits that end up being dispositive. This problem has just been exasperated over the past several years.

Our corporate clients responded to this issue long ago, implementing a range of specialized decision-support and “business intelligence” systems. These systems selectively extracted and organized significant corporate information to enable executives and managers to make better decisions faster. Unfortunately, the legal industry has yet to begin to develop comparable “litigation decision support” applications.

In general, eDiscovery tools do a lot of very complicated technical things, but at heart, they are just tools to enable large numbers of documents to be coded faster. The industry-leading tools are decidedly not designed to facilitate collaboration on the important documents, organization or visualization of the few handful of significant documents into different perspectives of the case story, or facilitating the legal team’s ability to see and exploit the critical leverage points to reach a faster, more favorable outcome. Rather, they are just intended to scale to the needs to code and produce, which is a significant task based on the growing data volumes of the modern case.

Unfortunately, for lack of better alternatives, many litigators find themselves forced to use a heads-down document coding tool for case analysis, deposition preparation and trial advocacy. As such, the frontline litigators rightly feel that the eDiscovery tools at large are ill-equipped to assist in their everyday management of their case.

EDiscovery Fact Management

Our answer to this problem is two-fold. First, we believe that the deliverables out of a document review should be more than just a defensible production. Rather, the document review should deliver more value in the form of actionable intelligence about that data – it should deliver the beginnings of the case narrative. Over the course of any review, there is valuable institutional knowledge developed by the review team that, if not transferred to the trial team, goes to waste. Preventing that waste is a powerful first step towards increasing the value of the eDiscovery process. Second, we believe that the document review should be calibrated to facilitate the trial team’s case management on a go-forward basis. To do that, we believe that a change of technology is part of the answer.

A new class of fact management tools is slowly emerging, designed to house the important documents, pleadings, transcripts and correspondence, and facilitate better collaboration and interaction. Traditional eDiscovery tools and new fact management tools both do valuable things, but they do different things and their products are targeted to completely different “customers.” Two excellent examples of fact management tools are Allegory (https://www.allegorylaw.com/) and Everchron (https://www.everchron.com/).

“The first stage of progress in eDiscovery was about building out the full utility and power that’s needed for large scale document discovery and review-to-produce workflows,” Jeremiah Kelman, co-founder and president of Everchron, told me. “The next big leap forward in innovation is going to be around the end-user [trial lawyer] experience, in particular for senior lawyers who need the production transformed into a fully analyzed, actionable set of key documents.” In other words, while traditional eDiscovery tools scale well for the professional document reviewer to make accurate and quick coding decisions, the fact management tool will be directed to facilitating the trial lawyer’s management of their case.

Fact management tools accomplish three main objectives: (1) providing a new central and collaborative workspace; (2) facilitating better feedback and data capture during the review itself; and (3) enabling new ways of sharing information with clients.

First, fact management tools facilitate a central workspace for the trial team to collaborate on the key trial materials. Kelman summarized it this way: “The ideal user experience, in particular at the post-production phase, is best achieved in a dedicated litigation management solution like Everchron. Everchron is tailored for substantive analysis and functions as a central workspace for the case team to collaborate and integrate all the different types of data it needs to prepare for depositions, hearings and trial.” What this means is that all the information about a lawsuit, including pleadings, transcripts, correspondence and document production, can co-exist in a single repository and be managed together. This facilitates stronger collaboration in a unified workspace.

Second, these tools allow better collaboration between the trial team and the review team. “With the ever-growing size and complexity of cases, it is imperative that trial teams create a feedback loop with the teams conducting document review to ensure the right evidence is being identified – for both production and application to the case,” Alma Asay, founder and CEO of Allegory, told me. “We love that Allegory can be used by a review team to gain insight into – and anticipate – the evolving theories and needs of the trial team. After all, isn’t that what every litigation partner wants – a team that can read his or her mind?” Having litigated for years, I can say with confidence that yes, that is exactly what every litigation shareholder wants.

Finally, these tools promote better client communication. Wendy Riggs, senior manager of eDiscovery and Legal Operations at Twitter, Inc., notes that fact management tools can increase the ability of the law firm and client to collaborate: “Allegory also promotes client visibility into the trial team’s insights, enhancing collaboration between outside and in-house counsel. This helps everyone involved to make better decisions and avoid reinventing the wheel.” While there are many ways to keep clients informed, this is another helpful means.

EDiscovery Outcomes Monitored

Unlike the product space, eDiscovery outcomes are not monitored by sophisticated sensors on a product. Rather, for us, the answer to the post-production monitoring appears to lie in this new family of fact management tools.

By putting eDiscovery work product into a tool that promotes interaction between the legal team and the production documents, we can start to monitor how the legal team uses the review content and dynamically adapt the content to their changing needs (e.g., through visualization, re-organization, summaries, etc.). This is more than metrics; this is actual engagement. Of course, this is just one example. I agree with Barkai’s observation that “[y]our product organization does not have a true and complete view of your product and how customers are using it, unless you continue to observe it through its lifecycle.“[**]

Unfortunately, until the legal industry realizes that eDiscovery’s primary objective is litigation fact management (not just a compliant final production), widespread adoption of these new tools may be slow and problematic. The legal industry has an emerging opportunity to deliver more than simple compliance with eDiscovery rules. This will begin with the realization that the eDiscovery process is an already necessary opportunity to engage with the data on a granular level and that leveraging those required costs in new ways is a rational and necessary next step.

The legal industry in general, and eDiscovery industry in particular, needs to deliver a highly-usable product to each legal team that distills tens of thousands of “relevant-and-responsive-but-who-cares” documents into a tightly organized, fact-driven case story. We then need to monitor how the legal team uses that product to analyze the case and develop more effective litigation and settlement strategies.

The industry recently has seen the introduction of a new class of Fact Management software intended to bridge the gap between the final production and the legal team’s use of a small subset of the information in that production. These tools allow the export of key documents from eDiscovery review platforms, and facilitate its organization and discussion by the legal team, primarily in support of depositions, settlement negotiations, motion practice, and, ultimately, trial.

Software and services companies looking for a key differentiator in a commoditized eDiscovery market need to bear in mind that the primary goal of eDiscovery spending – like all litigation spending – should be to deliver a significant competitive advantage to the party bearing the cost. Value, not just compliance, should be the goal. Vendors who tightly integrate fact management with document review functions, and embed the “sensors” needed to better understand how legal teams use the new fact management software, will be able to demonstrate real value to corporate clients, and gain market share and profit from their competitors.

[**] Barkai, Joseph, The Outcome Economy, pp. 75 (2016). I covered Barkai’s theories in last week’s blog.