Perhaps, perhaps, perhaps…

08 September 2014 by Adrienn Toth

I’m a man who likes straight answers and it’s part of my role as a technologies consultant to speak to clients in a language which they understand. So when seeking clarity in the unpredictable world of ediscovery the disconcerting reply of ‘it depends’ can become frustrating. However, I’m learning to accept that without perfect information, whether that be how an end client’s IT infrastructure sits or what a law firm is trying to achieve on their client’s behalf, it’s often the only appropriate answer to my questions.

Questions like:

  • Could we perform a remote collection for the client?
  • Is it possible to extract the data from the client’s database?
  • How long would it take to review those documents?
  • Will we be able to retrieve that deleted data?
  • What would be the best way to approach this case?
  • How many hours of professional support will this case require?
  • Should the client be collecting their own data or leaving it to the professionals?

The fact that my colleagues are willing to elaborate on this two word answer based on their experience of previous matters means I can provide more certainty for my customers but one is often reliant on the client themselves to provide accurate information and through no fault of their own, this isn’t always possible.

Information technology is at the heart of every edisclosure project and the fact that lawyers and their clients often don’t know what they’re looking for until they find it makes the process inherently unclear. To illustrate, we’re often asked by companies to collect their data to ensure defensibility and allow flexibility should the direction of an investigation or piece of litigation change during the ediscovery project. Our computer forensics team will only know for certain what the collection entails when they get their hands on the data itself. For our clients, however, an hourly rate and a ‘finger in the air’ approach to estimates simply won’t do. It’s imperative, therefore, that we gather as much information as possible about the nature of the data. But when you consider this information often resides in the IT department of an organisation, who (in ideal circumstances!) have relayed this internally and then it’s been passed to an external law firm before finally reaching us, you can see this is a paradigm which is difficult to realise.

Set this scenario against a client who wants complete certainty as to the costs associated with a project. This is the challenge we as ediscovery providers face every day. We want to provide fixed costs for the law firms and organisations who tap into our edisclosure expertise and technology, but in order to achieve this we need perfect information and collaboration with those who hold the information. This becomes even more convoluted when you throw in cross border elements because it’s hard enough for the organisations themselves to get to grips with their data.

There’s no doubt that many savvy lawyers now differentiate themselves by understanding more about edisclosure and advising their clients how to use technology to ensure the best result in the face of litigation or regulatory investigations. Edisclosure providers also have a part to play in their relationships with the end clients and a partnership between the two inevitably leads to a better understanding of the challenges of gathering the particular organisation’s data which has a knock on effect in terms of certainty of costs and dealing with these cases in a timely manner.