Antitrust and Global Investigations: The Era of the Legal Technologist Has Arrived
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The marriage of technology expertise with the license to practice law is in high demand and essential to the efficient handling of large-scale and complex antitrust and white-collar investigations and litigation. This is no longer a discretionary skill set designed to benefit those who respond to ESI requests, but rather a necessary proficiency needed to navigate the eDiscovery landscape. As electronic communication volumes grow and litigation and investigations continue to increase, the efficacy of conducting a linear-style document review becomes highly questionable. Faced with a costly and time-consuming process, the option to engage a “legal technologist” who can quickly get answers and efficiently identify the most critical records will shape a new frontier. Lawyers committed to the practice of law and adverse to technology can remain firmly entrenched in their preferred practice and rely upon experts to drive the technology and analytics component. Any firm responding to a discovery request should develop a trusted partnership with a provider that can supply this critical service. This relationship rises above simply “contracting” out, due to the significance and value of the role. These legal technologists are not just outsourced resources, but valued consultants who should be vetted not only for their legal acumen but also for their knowledge of analytics and cutting-edge tools.
One trend that is gaining steam as part of the effort to cut the cost of legal services and to improve overall results is the creation of lawyers who are employed by the outsourced provider but who work exclusively for a corporate client. These teams operate effectively as staff lawyers for the corporation — they are completely familiar with the client’s business and their data, a knowledge base that is built over time. Importantly, they are also skilled at navigating advanced analytics workflows to quickly identify key documents and case themes. As such, they can bring that level of experience and skill to each new matter and support the client and their outside counsel throughout the process.
The following are the types of work that they can accomplish:
- Early Case Assessment—As discussed above, the outsourced team can provide valuable insights into data at the front end of the case. Familiarity with client specific data can streamline efforts and avoid the challenges associated with unexpected obstacles. Working closely with the corporation and their outside counsel, the outsourced team can explore the appropriate tools that will assist the legal team in achieving their goals and quickly find key information that will likely drive decisions about how to shape the case. An important feature of the ECA process is the identification of data that is either marginally relevant (perhaps requiring only minimal review) or not relevant, thus significantly reducing eDiscovery spend.
- Document Review Process—Assuming that there is a need for document review after data interrogation, the knowledge acquired during the ECA process can be leveraged and the dedicated team will be the core group to handle the document review process. For many cases, the core group may be sufficient to handle the document review phase. To the extent that a larger team is needed, the dedicated team will oversee the work of the first level review team. The dedicated team can also handle some portion of the “second level” review, work that typically would be handled by an outside firm at a much higher cost.
- Deposition Preparation—the dedicated team will work closely with outside counsel to assist them in preparing for depositions, for example, by identifying documents that will be germane to particular deponents. In addition to using search terms, this team can use more sophisticated tools to identify interesting and useful content. They can also provide summaries to counsel on the relative significance of those documents for the deponents. Post depositions, the dedicated team can prepare summaries of the depositions for the legal team.
- Witness Preparation—the dedicated team can conduct fact research to help the legal team prepare fact witnesses for trial. During the expert phase of the case, they can provide assistance in preparing the experts’ initial and rebuttal reports. For the rebuttal reports, they can review any sources of information cited by the opposing party’s experts and assess their significance in the case.
- Trial Prep—the team can also help to prepare the direct and cross examinations of fact witnesses and assist with the compilation of trial exhibits.
- Appeal—the dedicated team can identify key trial testimony and trial exhibits that support the party’s arguments on appeal.
This blog post is derived from the Chapter titled “Outsourced Document Review: Data Intelligence, Technologist Lawyers, Advocacy Support” by Edward Burke and Allison Dunham, which appears in the Thomson Reuters treatise eDiscovery for Corporate Counsel (2023). Reprinted with permission, © 2023, Thomson Reuters. Jason Butler also contributed to this blog.
A link to the book appears below:
The contents of this article are intended to convey general information only and not to provide legal advice or opinions.