A comment I have heard on more than one occasion is, “We don’t know what we don’t know.” At the root of such a statement is the fact that when dealing with discovery technology, we are now in an age where options are many and one-size-fits-all solutions no longer exist. Creative application of the tools available is what separates success from frustration, turning what has historically been seen as an obligation into what in fact is a strategic advantage.
All this said, if one does not “know” what is out there, how can one ask the right questions or understand the response if outside of scope? The answer is CONSULTANCY.
Whether we call ourselves advisors, project coordinators, business development managers or anything that relates to collaborating with clients on project completion, making sure everyone involved is speaking the same language is at the core of what it means to be consultative. Ask questions, and often, to understand end goals. Reading the pleadings, researching the industry, and understanding (at a high level) the underlining legal issues all help sense check what is needed, and more importantly help determine what is possible through the use of technology.
If you have spent any time with me over the years or have worked on a large-scale investigation or litigation by my side, ou have likely heard me say, “It always gets done.” Built into this statement is the belief that nothing is impossible if one takes a step back, identifies what success looks like, then delves into the discovery technology toolbox, applying the best option to reach an optimal solution. Sometimes it is clear, most of the time it is not, but it is always collaborative.
Take the Phantom Document Approach
A client has been “dawn raided” and like most corporate leaders, the company view is that no employee of the corporation would ever do anything illegal or put the organization at risk of running afoul of corporate law. We have a copy of all data collected but it is far too much to even consider reading in-depth, coupled with the fact that a decision needs to be made. Do we dig deeper into corporate data? No one has the appetite to spend considerable amounts of money unless there is concrete evidence that there is something to worry about.
Aside from the fact that authorities do not knock on doors for fun and are likely acting upon whistle-blower information, what can be done? One creative solution would be to consider your worst-case scenario. What do you NOT want to see in the data collected, i.e., your nightmare document? After the universe of data has been processed and readied for analytic interrogation, the phantom document can be ingested into the data set to see if there are any other documents that are conceptually similar, a technology that is available in most review platforms. Will it find a smoking gun? Maybe not, but it could indicate the starting point for a deeper dive.
All too often, we are presented with a tool but never utilize it to its fullest capabilities. Conceptual analytics mentioned in the above scenario is but one of many bells and whistles that are vastly underutilized, leaving technology stagnant and undervalued. I like to equate it to buying a very high-end laptop or desktop computer simply for the purpose of surfing the internet or watching Netflix. What a waste! This said, if “you don’t know what you don’t know” how do you ask the right questions or get to the answers you need?
Take the Technology Assisted Review Approach
A law firm is negotiating search terms with opposing counsel and both sides have to navigate a looming disclosure deadline. Nothing can be agreed upon and discussions are becoming futile in terms of creating a roadmap forward. Costs are mounting and the window to meet the obligations of the court is closing.
Not agreeing on search terms is not an option for non-compliance. Disclosure mechanisms and procedures in a common law system are the foundation of fair access to justice. If one cannot rely upon a search-term-based approach, then don’t. Predictive Coding models do not require search terms to make determinations on relevance. Training the system on concepts of relevance will draw down similar documents and provide the legal teams with a highly reduced set of data to interrogate and make final determinations. Many issues need to be considered, all recognized through collaborative consultation, but using technology strategically can allow for disclosure even when parties could not agree on something as pivotal as a search-term-based workflow.
Finding Success in Consultancy
Whether using conceptual analysis, technology-assisted review, or any other advanced application housed within the variety of platforms available on the market, how one drives that platform is where we as consultants are finding the clearest avenues of success.
Recognizing that every case has its own nuance requiring very specific solutions designed to meet the end goals sought provides teams with an opportunity to think creatively and use the best tools for the job. It is the responsibility of the consultant to introduce these concepts, provide pros and cons as applied to the variety of options available, and most of all critically deliver what is needed to inform decision-making thus ensuring the avenue that leads to the best outcome is chosen. In short, it is about putting the technology back into the hands of the legal team so that when developing the arguments, they no longer feel like they “don’t know what they don’t know.”
If you would like to learn more about iDS, and how we can help find solutions for your complex data problems, visit us at idsinc.com.
iDS provides consultative data solutions to corporations and law firms around the world, giving them a decisive advantage – both in and out of the courtroom. Our subject matter experts and data strategists specialize in finding solutions to complex data problems – ensuring data can be leveraged as an asset and not a liability.