The Emerging Role of the Lawyer/Technologist in Antitrust Matters
The increasing sophistication of analytics tools available to lawyers coupled with the skills of the outsourced team containing technologists and lawyers raises the question of whether focusing on the review of “documents” still makes sense. In the days of paper discovery, a document was a finite compilation of information that had no necessary relationship to other documents unless legal counsel developed that larger context. Today, technology provides tools and processes that can assess the document in context (e.g., by compiling an entire email “thread”), find documents that are similar, and provide detailed information about the pattern of communication surrounding the document. These capabilities provide a greater lens for exploring documents in a contextualized setting.
Complexities in electronic communications are further compounded and complicated by applications used for workplace collaboration and shared documents. Edits do not occur on a single paper version anymore. By focusing on the data more broadly, lawyers can think about the information it contains and how it affects their view of the matter. This applies across the board to litigated cases, merger reviews in front of an antitrust regulator, and internal corporate investigations. By working closely with the technology team, lawyers can develop intelligence early in a case that provides a strategic advantage, such has whether to settle the case or make an application for leniency in a potentially criminal setting.
The Shift from Documents to Data
It may be semantics, but the question should now be asked whether the exercise of discovery is really the analysis and assessment of data rather than the methodical review of documents. The focus on data can alleviate slavish adherence to a review methodology that is premised on an entirely different set of circumstances. The focus on documents creates a perspective that is limited in scope. By looking at data, the legal team can quickly develop a hierarchy of key facts and themes to help stratify review and analysis. The legal team can also deploy rigorous testing processes to validate the results of the Technology Assisted Review (TAR) process.
Benefits of Early Assessment
Taking some extra time on the front end of a new matter will undoubtedly save time and money, but can also inform case strategy throughout discovery and up through trial. By analyzing a data set during the early case assessment (ECA) phase, counsel can unveil pitfalls that may not become evident until much further down the road. This can be devastating with large-scale matters that must adhere to a tight production timeline. Understanding the data characteristics of a given population ensures adequate time to remediate any data issues prior to production. It also affords an opportunity to assess the potential risk regarding pending legal issues, as well as unknown and potentially damaging issues. In many instances a thorough investigation will reveal key documents that afford the legal team an opportunity to perform tactical fact development and build their case before, or in tandem with, document review. Early analysis can also identify challenges that may slow or impede a review such as high volumes of privileged content, documents needing redactions, and privacy concerns.
Each new data set and case introduces unique elements that need to be examined in the context of the specific end goal. Understanding data from a technical perspective is key, but arguably not the sole consideration. In an environment where antitrust enforcement actions and merger challenges are increasing while pressure is also mounting to keep costs low and maximize efficiency, it is imperative to perform a preliminary factual analysis before executing a document review. Make it a priority to understand the anticipated responsiveness level within the dataset, prevalent issues, and potentially damaging documents. Additionally, early insight regarding the estimated effort for a privilege review and log can set the stage for better-informed strategy. This will foster a successful and well-managed document review.
Implementing the Process
The analysis should be performed by someone who is highly competent. In many cases this is someone with a legal background and subject matter expertise in the matter who can spot issues and quickly identify the most useful or inflammatory content. Ideally this individual also will be proficient in legal technology, an expert in data interrogation, and possess the capabilities to perform the requisite analysis. Enter the lawyer/legal technologist.
There has been an increase in these types of roles at law firms and corporations. These professionals are becoming essential to modern day eDiscovery. For those that do not have a lawyer with these qualifications on staff, it becomes increasingly important to partner with a trusted service provider that can offer guidance and execute the analysis under the direction of the legal team.
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 (2022). Reprinted with permission, © 2022, Thomson Reuters. Jason Butler also contributed to this blog.
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