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John Del Piero, Lighthouse; Jeremiah Weasenforth, Orrick, Herrington & Sutcliffe; and Andrew Pratt, Perkins Coie
March 8, 2018
Six practical ideas for persuading your litigation team members to leverage the power of data analytics in e-discovery.
The use of sophisticated data analytics is transforming the way litigation is managed in the U.S., and it appears that in-house counsel are welcoming these technology-powered insights. More than seven in ten corporate counsel now say they encourage their outside counsel and vendors to use data visualization and analytics, according to a 2017 Bloomberg/Catalyst survey report. Still, inside and outside counsel, as well as e-discovery technologists, face challenges when it comes to persuading their litigation colleagues to embrace the use of analytics in e-discovery.
While you may understand that the value of analytics is self-evident in almost any matter, it can be difficult to make the case to your colleagues, especially with limited time and opportunity for lengthy discussions and demonstrations. With that in mind, here are some practical ideas for persuading your litigation team members to leverage the power of data analytics in e-discovery:
Assess each case on its own
Each case is unique and not all of them are equally well suited for the application of data analytics in e-discovery. Structured analytics like email threading and near-duplication bring value in almost all cases. The value of predictive analytics, however, will turn on several factors, including the amount in controversy, the volume of data at issue, the posture of the parties, and the likelihood of judicial involvement. Communication analysis will have much greater value in some cases, such as investigations, where “who talked to whom and when” is highly probative. It’s important to analyze each case on its own. Determine which of the many analytics tools and workflows make the most sense and will deliver the most value before embarking on your persuasion efforts.
Identify the tools that will drive value
It’s important to understand that different analytics tools have various strengths. Some analytics tools are designed to reduce the volume of data while others streamline the review process. Other tools are built for large-scale digital investigations with dashboards and other visual representations that provide insights into data trends. Other tools are widely accepted by government regulatory bodies. The question is often not whether to use analytics, but what analytical tools will help accomplish the goals of the case. Many times, a simple conversation with the litigation team to understand their goals in the case can be a great starting point to evaluate and identify the tools that will drive the most value.
Evaluate the cost of a tool in the context of the ROI
At first blush, analytics pricing models and entry costs can be overwhelming. However, you can offset the sense of sticker shock by demonstrating the cost savings that the tools are expected to deliver. For example, where productions are billed by the document or the GB and review is billed by the hour, the simple step of applying email threading and near duplicate identification can reduce document populations by 20 percent or more, providing savings that greatly outweigh the costs of the tool. Track detailed metrics on a case-by-case basis to better understand both the cost implications of an analytical tool and the potential return on investment of using that tool. Also, explore alternative fee arrangements. The industry is now expanding its flat fee offerings, providing predictability and mitigating financial risks to the client.
When faced with resistance, partner with your outside service providers to create a detailed comparison model. Start with the various cost elements that your colleagues have come to expect from managing e-discovery with the traditional linear review model, then develop a cost estimate summary for the same type of case when you apply analytics and implement a modified workflow. This tangible cost comparison model often persuades even the most stubborn litigation professional to embrace analytics.
Focus on strategic benefits
It is important to point out that the benefits of employing analytics tools and workflows extend beyond cost-savings measures. Applying analytics during early case assessment can help in evaluating whether a case should be litigated or settled, based on insights gained from greater visibility into the data. Tools can increase the pace of discovery, reduce hardship in rocket dockets, and provide better predictability for meeting court ordered deadlines. And some tools, in unique situations, may actually eliminate the need for attorney review altogether.
Build on and measure past successes
One pitfall professionals often fall into is relying on studies or marketing material to try to persuade their teams to use analytics. There are numerous studies that show the benefits of using analytics like technology assisted review, but experience has shown that reliance on these studies is not always persuasive. Instead, use your past successes to encourage new litigation teams to embrace analytics tools and workflows. Being able to move from the realm of theory to concrete examples is highly persuasive. Maintain a list of recent successful analytics projects. Nothing is more persuasive than being able to refer litigation teams to other respected colleagues that have had successful experiences with these tools.
Be an agent of change
Be a change agent by customizing technology recommendations to the specific needs of each case—and then illustrating the specific strategic and financial benefits these tools can deliver for the team and for the client. Partner with subject matter experts to explain the technology’s functionality to legal teams and clients and, where necessary, your adversary and judge. Identify a lead on the legal team to navigate the meet and confers, local rules, ESI protocol model orders, and other legal considerations surrounding the application of technology to discovery. It is important to make the decision easy. If possible, spend some time in the data before meeting with the litigation team and prepare concrete examples to share and get the team excited: cluster the primary custodian’s documents; utilize a Statement of Facts to build a categorization set; prepare a visualization of the communications between key players.
There is no doubt that data analytics adoption will continue to grow throughout the legal profession. In the meantime, it can be tough to persuade litigation team members to jump on board a new train when they don’t quite understand its destination. You can be a change agent by taking a measured approach to the kinds of cases and tools that you recommend to your colleagues – and then illustrating for them the specific strategic and financial benefits these tools can deliver for the team and for the client.
John Del Piero is Vice President of Global e-discovery Solutions for Lighthouse. Jeremiah Weasenforth is the Managing Project Attorney in the Orrick Analytics group at Orrick, Herrington, & Sutcliffe, LLP, a group that specializes in using technology and project management discipline to assist firm attorneys with litigation and transactional tasks. Andy Pratt serves as a senior discovery consultant within Perkins Coie’s E-Discovery Services & Strategy practice.