Anna Mercado Clark Discusses E-Discovery

To stay competitive, law firms maintain technological edge

Now that the legal marketplace has spent at least a decade in the digital age, the next challenge is to keep pace with the evolving technical landscape.

E-discovery and sophisticated presentation tools and software have become commonplace in many courtrooms and most large law firms, and success might depend on staying abreast of the latest products and methods — or at least ahead of the competition.

Electronically stored information (ESI) such as e-mails, text messages, voicemails —virtually anything on an electronic device — is now discoverable in litigation, and there has been such explosive growth in the field that most midsized and large law firms have several lawyers with special training in e-discovery, supported by technical support teams to handle the initial collection, screening and analysis of the data.

Nixon Peabody LLP has had team of employees focused on the use of technology in litigation for 17 years. Today the firm has eight non-lawyers providing e-discovery and other technical support, headed by Michael Swiatocha.

Swiatocha, who has been with Nixon Peabody 14 years, started as a paralegal and transitioned to e-discovery.

Jonathan Sablone, a partner at Nixon Peabody and chair of the firm’s e-discovery and digital evidence team, said it’s common for larger firms to have a group of workers dedicated to e-discovery.

“This is pretty typical. I can’t think of a large law firm that doesn’t have a technology support group like this,” Sablone said.

The Nixon Peabody team consists of e-discovery specialists who are less experienced and spend a lot of time loading information into databases, running searches for attorneys and doing basic review of data. They help the legal team with organizing information and developing the best method to analyze the data.

Senior e-discovery specialists usually have eight to 12 years of experience and have dealt with lots of issues that crop up in litigation and investigations.

“They’re really looked at as a consultant to understand the litigation or the investigation and figure out the best way to work with the clients to collect the information efficiently and as cost-effectively as possible, and then transition it over to us,” Sablone said.

The job is gradually becoming more and more complicated because it involves cases with parties from around the globe, with data in different languages, various apps and an assortment of data types and data protection tools.

“We look to our senior e-discovery specialists to be very aware of that and figure out the best way, the most efficient way, to deal with a lot of those issues that crop up,” Sablone said.

The team also includes solutions architects who make sure the tools being used are state of the art and the team is using the best applications available.

The biggest change during the past few years is that the software used to review large volumes of data has moved from simple keyword searches to computer assisted reviews. In the new method, a worker reviews a small number of items in a database and, as the worker sorts them, the computer learns what to look for.

“Then you set the computers loose against a much bigger data set and the computers decide, based on that smaller subset, what’s responsive and what’s not,” Sablone said.

“The way we do large e-discovery reviews today is completely different from the way we were doing them five or 10 years ago,” he said.

The world is changing

Considering the methods used to review e-documents in litigation, large companies can increase efficiency by using a recordkeeping system that will match up with those tools.

Nowadays enterprise software, such as Microsoft Office 365, has features that help businesses maintain their data so that it’s easier to access in the event of an investigation or litigation and to comply with applicable government regulations.

“Large corporations are very aware that the way that they manage their data can make a big difference cost-wise, efficiency-wise, and time-wise when it comes to a litigation situation,” Sablone said.

Even though law firms have developed effective methods for reviewing large amounts of digital information, it’s a constant battle to stay ahead of the curve.

“The world is changing and people are not sitting at their desks on an actual computer as much anymore,” Sablone said.

“We’re finding incredible amounts of data on places like iPhones and personal devices. People are using texting apps and other types of applications to communicate and to conduct business. And the way that you preserve and collect and process and review that material is sometimes very different,” he said.

There is a constantly expanding variety of apps that might conceivably contain data that is discoverable. Some of that data is stored on cloud computers and some is stored on the user’s device. And the data can be in different formats. And sometimes it disappears after being read.

“E-discovery tools are always playing catch up, and I think nobody has really found the perfect solution to efficiently go through the chat data that’s available out there,” Swiatocha said.

“There are app developers who are always looking for the best way to make sure this information is not recoverable. Trying to keep up with that and figure out the best way to deal with those scenarios is the current challenge that’s out there,” he said.

Phillips Lytle LLP, which has an e-discovery team of about 25 to 30 attorneys and three people in technical support roles, has been providing the service since 1999.

“We believe that we are the first upstate New York firm to engage in e-discovery,” Anna Mercado Clark, a partner at Phillips Lytle and leader of the firm’s data security and privacy and e-discovery and digital forensics practice teams.

Now that many law firms have e-discovery teams with similar tools, the challenge is to use those tools creatively to distinguish themselves from the competition.

Harris Beach PLLC has about 12 non-attorneys working in e-discovery. About half of them travel to client sites to collect data from all sorts of devices, including computers, cellphones, even surveillance cameras.

Alan M. Winchester, leader of the firm’s cybersecurity protection and response practice group and the e-discovery practice group, said the firm has several devices that cost about $20,000 each that can be connected to most cellphones and electronic devices to download data stored there.

Harris Beach offers its e-discovery services to other firms and attorneys. By going to Harris Beach instead of a vendor that is not a law firm, clients will get the support of a skilled e-discovery attorney.

“We won’t steal your case because that’s not what we’re about and it would kill our brand if we did, but we can let you really interact with opposing counsel as if you have a dedicated e-discovery practice within your shop,” Winchester said.

It’s an approach that justifies the large investment Harris Beach has made to create a strong e-discovery team, but which isn’t always used to capacity.

Harris Beach is finding even more ways to capitalize on its technological expertise. The firm created a new company called Caetra that will introduce a beta version of a new software product called Cymetric, which was developed by Winchester.

Cymetric will help companies analyze their regulatory compliance and create written policies to meet government regulations without the need for expensive legal counsel.

“You’re not going to stay a large firm for long if you’re not innovating, because some other group will come up behind you and do it. You don’t want to be clobbered by not innovating and keeping current,” Winchester said.