The economic downturn has made organizations more conscious of legal costs for both in-house and outside counsel. The impact has been reflected in increased attention to fixed-price models, low-cost outsourcing and use of automation. In addition, companies in highly litigated industries are attempting to reduce risk through e-discovery readiness. In combination, those factors have affected the roles of legal professionals (see sidebar following article), as well as the software solutions geared toward a changing set of needs.
Movement is in both directions: Lawyers are gradually becoming more knowledgeable about software, particularly those associated with archiving, early case assessment and e-discovery. At the same time, software developers are making a concerted effort to provide products that allow lawyers to focus on their case rather than on the methods used to extract and analyze information.
Severson & Werson, a law firm based in San Francisco specializing in financial services litigation, bankruptcy and class action law, was experiencing rapid growth for several years. “We were the classic midsize firm, with just over 60 attorneys,” says Bruce Furukawa, technology partner and member of the firm’s Litigation Practice Group, “but in two years, we jumped to 80.”
As the firm grew, it wanted to leverage software to increase its efficiency and to create more business opportunities. Expanding into e-discovery and document review proved to be a productive area for the firm, which prepared itself well for that booming market. After experimenting with several document review tools, Severson & Werson began using Relativity from kCura.
“With other products, we had some performance issues in terms of retrieval speed and scalability,” Furukawa says, “but Relativity has more than met our expectations.” As a hosted solution, it can be adjusted easily to the company’s needs. “We can ramp up in 15 minutes if we need to,” Furukawa explains, “and then at the conclusion of a large case, remove those seats.” The hosting company, Evolve Discovery (evolvediscovery.com), is available 24/7 and also serves as the administrator, setting up access rights and other features of Relativity according to guidelines established by Severson & Werson.
The interface is well designed for business users because it resembles the familiar Microsoft Outlook interface. Folders show up in the left margin, e-mails and other documents being reviewed are displayed in a central panel, and the right margin provides a set of tags such as “responsive” and “privileged” to categorize documents during the review process. “You can set up any type of tag you want,” Furukawa says, “including general categories like ‘questions for attorney’ or ‘hot.’ ”
The software constantly updates the status of files, indicating, for example, how many documents remain to be reviewed. “With one product, we had to manually calculate how many documents had not been reviewed by subtracting how many each reviewer had seen,” he explains. Queries are run from a search window that resembles an Internet search interface. In comparison with other products Severson & Werson had investigated, Relativity had an uncluttered, highly functional interface.
Only a very small percent of lawyers could be characterized as truly technically savvy, according to Furukawa. “Typically, lawyers place their priorities on being knowledgeable about the content of their cases,” he says, “and although they want technology to help them, they don’t want to spend a lot of time learning how to use a software product.”
Furukawa also points out that lawyers can assimilate information rapidly. “When I teach seminars to help explain technology, often it’s just a case of connecting a term such as ‘metadata’ with an underlying concept that is easy to grasp once I provide a few examples,” he says.
Because law firms now rely heavily on technology for many of their processes, disseminating technical expertise is important. Some firms, including Severson & Werson, are using a knowledge-sharing model in which a lawyer who is also a technical expert jumps into a case long enough to set up the review process, define tags and other parameters, and then moves on to the next case. Some have a defined position such as technology partner or chief knowledge officer.
Regardless of how a firm addresses the issue of technology use, software solutions for e-discovery and other functions are becoming indispensable in most areas of law, and those who use them well are benefiting. “We are now able to tell large banks that we can handle major class action suits with multiple custodians, and that we can make the data accessible via the Web for outsourced review,” Furukawa says. “In addition, the speed with which we can pull out a particular e-mail thread or locate responsive documents is astonishing when compared to how long these processes would have taken if done manually.”
He also gives high marks to the concept searching feature, which identifies documents relating to a particular topic even if the terminology used is not the same. “When we can leverage technology tools like concept analytics, we spend less time looking for key documents and more time applying our legal skills, which saves money for our clients,” he explains.
kCura was founded in 2001 as a software consulting firm, and later it developed a document review platform centered around concept search. “At the time, document review software did not have the appropriate scalability and search capabilities for large volumes of electronic information,” says Andrew Sieja, CEO of kCura. An advanced concept search capability is also incorporated into Relativity with software from Content Analyst. “The analytics tools associated with concept searching in Relativity are presented in the standard interface,” Sieja adds, “and are designed for the user, whereas traditionally these tools required the assistance of an administrator.”
In addition to bolstering the capability of law firms of various sizes, Relativity is also used by large consulting firms and service providers (vendors) that specialize in e-discovery. The software can be installed on-premises as well as offered as a hosted solution. “Flexibility is another area in which Relativity is strong,” comments Sieja. “As new requirements evolve, the administrator can open up functionality as needed, and if a team needs to change the review workflow, an attorney with the appropriate privileges can do that.”
“Be prepared” is becoming the motto of organizations with respect to e-discovery, according to Aaron Brown, program director, ECM Discovery, IBM. The 2006 Amendments to the Federal Rules of Civil Procedure (FRCP) drove changes in the market because without a software solution, the required discovery of electronic information is not feasible. “Initially, companies applied the search across all their information, and costs were uncontrolled,” says Brown. “As a result, organizations began to take a more proactive approach.”
IBM’s InfoSphere eDiscovery Manager provides an information management platform with a high-volume repository. “If litigation appears on the horizon,” Brown says, “organizations know within days what they are dealing with because they are not scrambling to respond.” Instead, information has already been sorted and categorized, e-mails that are not records have been eliminated, and a trusted repository based on IBM’s ECM platform has been established. If individuals or timeframes are cited in litigation, the information can immediately be preserved because it has already been processed.
Subsequently, IBM InfoSphere eDiscovery Analyzer can be used by the legal team to look at the evidence, develop a timeline and provide insights into the data that can guide decision-making. “If the legal team finds a smoking gun, they may choose to settle rather than fight,” Brown says.
Statistical analyses detect patterns in the information, providing clues even in situations where the parties intended to deceive. “In one major fraud case,” he continues, “the authors of e-mails were using code words to avoid raising a red flag, but the software still detected an issue because of patterns that showed a spike in the references during one month.” Such analyses can also be useful in situations where investigators are not sure what questions to ask, and when keywords alone would not provide meaningful insights.