How does an eDiscovery Consultant in SA add real value?

Over the last few weeks I have had numerous meetings and exchanges of communications with law firms, corporations, Government bodies and service providers in SA, and these communications have made me realise that it would be useful to document precisely how an eDiscovery Consultant adds value to a project. I guess it stems from, at times, being asked quite bluntly, “so what exactly do you do” or as in one case “are you an IT person who moved into this field?”

In my sometimes typical contrary mode I will deal with the latter question first! No, I am not and never have been in IT and in fact so many people in this industry know far more about IT than I do. I learned about all of the component parts of the Electronic Discovery Reference Model, perhaps from a different standpoint than others - the legal one rather than the IT one. I am fortunate to know so many people in this industry across the world and, without doubt some come from an IT background and have then expanded their IT knowledge by moving into this industry. Therefore, many highly skilled folks who work for service providers now, possess IT or Computer Science qualifications and experience and then have applied those to the eDiscovery industry.

My starting point is my experience of the process of litigation gained from working for law firms as a fee earner specialising in civil and criminal litigation. It was only after I made a conscious career change decision about 15 years ago that I started to learn about how technology can assist in litigation matters. Fast forward 15 years to my decision to become SA’s first independent eDiscovery Consultant which allows me to use, on a daily basis, the two greatest passions of my working life - the law and technology. You see, I love the law and all of its idiosyncrasies, and how it is practiced. I have seen, first hand, how technology has changed the way that lawyers work or can work. I count myself very fortunate that I entered the industry known as Litigation Support just about as the email revolution was hitting us, and I became fascinated to see and learn how, in the USA and then the UK, a whole industry was evolving from manufacturing software to deal with electronic data to educating lawyers on how to use it. Then as the roller coaster went ever faster I witnessed the judiciary and “Rules makers” embrace the moment and introduce changes to Civil Procedure Rules incorporating how to deal with Discovery (Disclosure in the UK) surrounding electronic documents. So I learned all that I could but used my practical knowledge of working in litigation to make sure that I not only understood, but could translate the “techie” stuff into language and explanations that would resonate with lawyers and in house teams at corporations. A bit like a football referee knowing all of the rules of the game as well as the ”tricks of the trade” but never having played at a professional level. For example, I have certainly mentioned this before, that IT and technology people describe metadata as “data about data” or “the properties of electronic documents”. When I first joined this industry, neither of these explanations meant anything to me at all, and given the importance of metadata I realised I had to make some sense out of it myself before I could start talking to lawyers about it. It was then, more than 12 years ago, that I devised my explanation that metadata tells you Who Knew What When, because having worked on litigation cases for over 30 years I saw that this was exactly what a lawyer needs to know. There is so much technical jargon in this industry but I take the view that a practising lawyer has not the slightest interest in for example,  a “Sequel back end” and indeed may consider it to be a criminal offence! 

So, now I am linking my response to the second question about not being from an IT background by emphasising that I am from the same background as many of my clients. I know the process of litigation. I know the pain points. I know the strategy and/or tactics. I understand about pleadings,  privileged documents, interlocutory applications, Discovery deadlines, List of Documents supported by an Affidavit (or in the UK, the Statement of Truth), and I know about settlement negotiations, expert evidence and Trial Bundles. If I then add to that knowledge and experience, the technological aspects of eDiscovery alongside my long list of global contacts, you may begin to see why I chose to become SA’s first independent eDiscovery Consultant. It also helps that I love people and I love to help, educate, advise and talk to people especially on a subject about which I am passionate. I mean this in a very modest way, but I know more about eDiscovery than anyone else in SA, not because I am a “smart ass” but because I am fortunate enough to have had more experience of it than anyone else here at the moment. I take the view that to be an independent  eDiscovery Consultant you need to know about both the technology AND the legal processes. Knowing just one would make you a different type of Consultant, in my respectful submission.

Because I am not only an independent Consultant, but also software agnostic (to use some jargon!) I can truthfully advise as to whether eDiscovery technology would help in a particular matter or not. If it does then I can save time and money for the end client without question. I can recommend particular software solutions which I would consider best suited for the type of matter and therefore can recommend service providers, allowing the client and or lawyer to make the final choice. My guidance and advice will help to predict and control costs whilst at the same time ensure Discovery rules (such as they are here!) are met. I can help to streamline the review mechanism which is the most expensive aspect of any case (latest assessments place this at 70% of the total cost). Further, because of my experience I can help with strategy, irrespective as to whether a matter is likely to settle or proceed to trial.

Some law firms that I have met with have some experience of eDiscovery technology, but it is clear to me that they need to know more about the functionality as well as what else is available. Additionally, one law firm told me that more junior members of the team were actually using the eDiscovery software by way of searching and initial review but it would be useful for them to know more about why they were doing what they were. Therefore, some brief and relatively simple presentations by way of training has been agreed. Furthermore, SME’s can benefit from the services of an eDiscovery Consultant, especially when they find themselves up against a top tier law firm - I call it “levelling the playing field”!

I hope this adds some flesh to the bones as to how an independent eDiscovery Consultant can add value to practising lawyers and, of course, to in-house teams and end clients, value, not only in respect of strategy and tactics, but actual cash.