James Moeskops continues his series “Top 10 Ways in which lawyers are wasting their clients’ money”

Waste #9. Selecting the Wrong Electronic Disclosure Technology or Expert

The provision of electronic disclosure services to law firms and their clients incorporates a myriad of niche service elements which are ‘mixed and matched’ on a matter by matter basis. The definition of these service elements is best represented by the Electronic Discovery Reference Model ‘EDRM’ (see www.edrm.net for more information).

One of the market trends of the past decade has been for firms providing niche services in one area of the EDRM to present themselves as a one stop shop service to law firms. Lawyers need to be aware of the relative strengths of different service providers and at times may need to consider engaging multiple service providers on a single matter.

Common examples of where we have seen the ‘wrong’ technology or service provider engaged include:

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James Moeskops continues his series “Top 10 Ways in which lawyers are wasting their clients’ money”

Waste #8. Inefficient Manual Production of Bundles

On large document-intensive matters the production of hard copy and/or electronic bundles for trial, arbitration or mediation can become hugely costly.

Costs are mitigated if the bundles are created from an electronic disclosure database because the process of organising documents, creating an index and ultimately producing the documents in electronic and, if required, hard copy form is far more efficient.

Conversely, bundle creation costs are compounded when the documents to be included in an electronic bundle are in hard copy format - even if we disregard all the associated upstream inefficiencies.  When these hard copies originated as electronic documents that were printed out at the review stage, the result is a wasteful and costly merry go round of printing and scanning, scanning and printing.

My example here is partly related to an issue I raised earlier in this series, and partly to do with the capabilities or otherwise of legacy IT systems. 

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James Moeskops continues his series “Top 10 Ways in which lawyers are wasting their clients’ money”

Waste #7. Manual Creation or Reformatting of Document Lists/Indexes

Despite a growing awareness of electronic documents we are regularly surprised by the efforts lawyers continue to go to when preparing lists of documents for disclosure. This typically involves typing a manual list into MS Word which ‘describes’ the documents in the list including date, document type, author, recipients, attachments etc. Not only is this practice time consuming and therefore expensive to the client, it is also a very unhelpful way in which to receive the document list for lawyers who are familiar with electronic disclosure and contrary to the explicit guidelines set out in CPR Part 31 Practice Direction 31B.

The key points on this topic include:

• Where the list is being prepared from an electronic disclosure database the process is extremely simple with minimal lawyer time and outsourcing costs (see case study below).

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Waste #6. Failure to use advanced search/review technologies

The time charges associated with reviewing documents typically constitutes the largest proportion of the overall cost especially for relatively document-intensive disputes. One of the most active areas of electronic disclosure technology development in the past few years has been in the areas intended to accelerate the legal review process. Such technologies may be broadly classified as follows:

• Clustering – software which attempts to automatically group documents together into ‘clusters’ of documents based on textual content and / or an attempt at understanding the conceptual content.
• Conceptual search – software which extends keyword searching to incorporate conceptual search. This technology ranges from the software suggesting variations on a theme based on keyword terms entered by the lawyers through to automatically returning hits on documents that the software has determined to be conceptually similar in content.

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James Moeskops reflects on how technology and costs, if not practice, have changed since the early days of e-Discovery. This is the fifth in the series “Top 10 Ways in which lawyers are wasting their clients’ money” 

Waste #5.  Inefficient Document Review Workflow

When working with hard copy, lawyers have historically organised documents into lever arch files in chronological order and reviewed them by reading and making notes or tagging with colour tags as they go. Where there are very large numbers of files to review, the task may be split between different reviewers typically using lever arch files as the basis for allocation of a ‘batch’ of documents to review.

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James Moeskops reflects on how technology and costs, if not practice, have changed since the early days of e-Discovery. This is the fourth in the series “Top 10 Ways in which lawyers are wasting their clients’ money” 

Waste #4.  Selecting wrong or misleading keywords for searching

Research from the US suggests that keywords are on average only effective in identifying in the region of 30-40% of potentially relevant documents. Further, keywords often result in large volumes of ‘false positives’ (documents that are responsive to the keyword(s) but are of no relevance to the matter). The net effect is that to the extent that keyword searches are used as the primary basis for either the initial process of searching the client’s system or to filter down to a reviewable quantity then most lawyers will have missed potentially relevant documents and will be reviewing large volumes of irrelevant documents.

Other common issues / inefficiencies arising in relation to the use of keywords include:

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James Moeskops reflects on how technology and costs, if not practice, have changed since the early days of e-Discovery. This is the third in the series “Top 10 Ways in which lawyers are wasting their clients’ money” 

Waste #3. Not Consulting with Experts at the early case assessment and document collection stage

Most lawyers do not have the technical knowledge or experience to directly advise their clients as to the practicalities associated with the CPR Part 31B guidelines. Likewise, IT professionals do not have the skills experience and or software tools to address the search, collection and production requirements in accordance with the CPR.

Therefore, historically lawyers have tended to rely on sending their clients standard letters of advice and requests for information in relation to their obligation to search and disclosure without overly concerning themselves as to the nature and extent of such searching and disclosure.

Historically where the opposing parties and judges had a similar lack of understanding of the technical issues the risks of the nature and extent of disclosure being questioned or otherwise becoming an important issue was minimal. This is changing rapidly as all parties involved from the end clients through to the judiciary are becoming increasingly aware of the availability of  technologies and service providers that can assist.

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James Moeskops reflects on how technology and costs, if not practice, have changed since the early days of e-Discovery. This is the second in the series “Top 10 Ways in which lawyers are wasting their clients’ money” 

Waste #2 Reviewing Electronic Documents in ‘Native Form’

It is surprisingly common to find that lawyers who receive relatively large volumes of electronic documents (often on a memory ‘stick’ CD, DVD or even via email) opt to review these documents in their ‘native’ form (i.e. original form as they are received) without the assistance of electronic disclosure expertise or technology. Typically, this will include using Outlook to open email files (generally in PST form) Windows Explorer to search and navigate folder structures and the relevant MS Office programs (Word, Excel, PowerPoint) and Adobe Acrobat to open pdf files.

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