October 18, 2023

discovery optimisation litigation law department innovation

When law departments innovate a process for a particular category of work, it is tempting to view initial results as ‘good enough’ and shift focus from additional innovation to simply delivering the substantive work of the activity in question. However, if left there, this can result in a false sense of success and a huge missed opportunity to achieve and benefit from easily attainable gains, including those from additional changes that initially may seem tiny but steadily add up (as explained here).

Consider, for example, processes related to litigation. Many law departments that Elevate partners with have implemented core initial strategies to optimise both operations and spend in this realm. The strategies we see most frequently are:

• Reviewing and optimising their entire Electronic Discovery Reference Model (EDRM) process (playbooks, roles and responsibilities, etc.)
• Leveraging one or more eDiscovery technologies for hosting, review, and production
• Partnering with law companies for cost-efficient document reviews and productions

Because these (and other) strategies typically deliver immediate and significant savings (and other noticeable benefits), many law department leaders view the results as sufficient to consider this area ‘mostly covered.’ Most law departments understandably refocus their energy away from further innovation back to litigating the matters. The innovations become a new status quo, with the law department content to reap the benefits for many years. Absent a significant screw-up, the law department follows an ‘if it ain’t broke, don’t fix it’ stance toward its relationships and continues working with the service providers involved.

Meanwhile, businesses continue to evolve – as do regulations. Both sets of changes mean new types of litigation ensue. To ensure legal continues to add business value through a ‘run like a business’ approach (previously examined in depth here), general counsel and litigation heads must look beyond their initial optimisations to ensure their department’s capabilities continually and incrementally improve to ensure the department’s contribution to the bottom line also continues to grow.

In our experience, these eight strategies are impactful methods for taking initially elevated litigation support programs to new levels:

• All-in, Fixed Per-Document Review Rates: Predictability is paramount in high-cost litigation. Moving to all-in, per-document review rates allows litigation teams to know and budget their matter cost on large document sets up front. Bundling the eDD and review into a single per-document rate also eliminates internal headaches from managing and maintaining multiple eDiscovery technologies.
• Multi-Language Capabilities and Global Review Teams: Global companies often have global matters that require teams across geographies. For companies to battle disputes and contend with regulations across multiple jurisdictions and languages, having teams worldwide becomes crucial, especially to maximise speed and leverage proficiency. Even for US-based matters, the use of global teams is growing, as they often prove more cost-efficient while achieving the same level of quality.
• Data Breach Response and PHI / PII Reviews: Data breach responses are a different beast altogether and require unique technology and reviewers to rapidly assess, quantify, and respond to large-scale data breaches. And more and more companies every day receive growing numbers of Data Subject Access Requests (DSARs). Speed and accuracy are paramount in all such matters and require an offering that provides technology combined with data privacy review skillsets.
• Routine Third-Party Subpoena Response: Responding to third-party subpoena requests is a catch-22 for companies: compliance is mandatory, yet the necessary work does not add value. Worse, by handling such work in-house, internal teams sacrifice time better spent on higher value-added activity. Using a traditional law firm to do the job results in costs that significantly outweigh the benefits. A far better approach is often to use a legal service provider adept at efficiently handling all aspects of subpoena response and able to apply technology to maximum effect.
• Contracts-Intensive Audits and Regulatory Reporting: Some companies must review a large number of contracts – whether for eDiscovery purposes or to extract data on contractual terms –While standard eDiscovery technology and review teams can help, they are not optimal for aspects of contracts-related reviews and productions. Contract insight technologies and experienced contracts reviewers are crucial – whether as a stand-alone solution or to augment standard review teams.
• Carving Out Written Discovery Requests from Your Law Firms: Handling written discovery responses can be a significant expense in litigation. Shifting such work from primary counsel to a lower-cost legal service provider – especially when dealing with portfolios of similar litigation – substantially reduces costs without compromising lead counsel’s ability to manage the case effectively. Significant benefits can come from using AI tools to aid (but not replace) lawyers in identifying and crafting standard responses and objections.
• Medical Record Audits and Reviews: For companies entangled in high-volume, class action mass tort or product liability litigation, medical records collection and analysis are essential. Reviewing such material is a predicate to disputing damages claims or the reasonableness of the cost of care. Such reviews require unique technology (e.g., medical records AI-based tools) and resources like specialised medical record review teams.
• AI-Driven Testimony Intelligence:When litigation drags on for years, or large-scale litigation (mass tort, class action, etc.) piles up, so does valuable intelligence in the deposition and trial testimony. But as the litigation grows and more testimony accumulates, preparing for expert witness depositions, 36(b)(6) witnesses, or even fact witnesses becomes increasingly difficult. A company can gain a critical advantage in prepping witnesses or identifying areas of impeachment by using human-plus-AI-powered approaches to efficiently load, index, organise, and identify useful intelligence from high volumes of legacy testimony data.

 

This theory of continuous improvement applies beyond litigation to all areas of legal work but is especially fruitful in areas of high-volume work. Furthermore, it is critical to develop a continuous improvement strategy that involves providers who can strategise, lead, and support the department through multiple improvement stages, thus enabling the proper momentum needed to reach those exceptional and compounding gains.