Is eDiscovery a “stain on our legal system”?

Everyone knows that headlines are meant to sensationalise so that you read the article. Well, I saw the headline and read this article only to find the headline was a direct comment from Logikcull CEO Andy Wilson. This, from the CEO of a company who has just been awarded Best eDiscovery Hosting Provider  at West Coast Legal Tech.

I have read Andy’s comments contained in an open letter to “honourable practitioners of the law” and apart from the “stain” comment, he writes, “It forces swift settlements, delays justice, cheats clients and enrages judges” Wow, if this were true would you want to win “Best eDiscovery hosting provider?

Let me first declare my position. I do not manufacture nor sell nor use any eDiscovery software solution. I act as an independent eDiscovery Consultant based in South Africa and I “sell” my time, expertise, experience and global contacts to assist law firms and corporations in their eDiscovery matters.

After publishing these words, Andy has “back tracked” a little by complaining about “..waste, inefficiency, antiquated workflows, extreme cost, poor technology...” and commented that he feels the discovery process can be made better. That has always been the case as the technology has continuously evolved to make the discovery process better. The trouble is that to an extent the damage has already been done and these comments are exactly that, “back tracking”.

Looking at some of the original comments, firstly, eDiscovery technology was born, has developed, and continues to do so because of the proliferation of electronic data. The eDiscovery industry did not create emails, spreadsheets, Word docs, embedded files, Social Media etc. nor has it done anything to increase the ever growing volumes in the world. What it has done is reacted to these and produced solutions which have had, and will continue to have, positive effects on litigation, investigations, Competition cases and the like. It has “found” documents which clever people have used technology to hide. It has markedly reduced the cost of litigation etc. by avoiding the previous practice of “eyes on” review of every document. It has materially assisted Judges in many countries of the world, many of whom are now great advocates for its use. eDiscovery hastens rather than delays justice. I have been in Court when our side was using laptops and the other side wheeled in 100’s of boxes of paper. Guess which side not only received a rebuke and costs penalty from the Judge but which corporate client commented “Why can’t my side use technology”? But, Andy is not really saying, “Don’t use eDiscovery technology”, he is saying, “Use my eDiscovery technology”. All of this may well be a simple marketing ploy and it is up to the market, in the USA, to determine whether it is successful or not. I say USA, because my understanding is that Logikcull is cloud based and therefore may have some issues on Data Protection elsewhere in the world. Of course, I may be wrong. I haven’t seen the solution but I have to say that comments such as the ones I have read do not actually encourage to me to do so, but then Andy does not have to sell it to me.
Manufacturing software that is as serious as it has to be to deal with the law and to keep up with the changes, volumes and complexity of data, is clearly expensive. That software is then licensed to service providers who have to provide a secure infrastructure and highly skilled people to operate it and to run cases for clients. All of the above has to be done in a completely defensible manner. These are businesses, just like Logikcull, and the purpose of running a business is to make a profit. In my 15 years in this industry I can say that it is only the increased volumes and complexity that has increased the costs of eDiscovery. If Logikcull has a different charging model than others, then, well done and good luck to them but “rubbishing” the competition and using words like “stain” “cheat”, “waste”, “weaponised” etc. is hardly what you might call professional marketing. I was always taught to sell by your own good values rather than by being negative about your competitors.

So, let me repeat that I have no axe to grind here. On the contrary, I welcome, as I have done for 15 years, improvements in eDiscovery technology especially if they not only add value by solving new issues but also drive down costs. Whilst mentioning costs in litigation, let us all know that the highest cost in a litigation case is the cost of review (probably 70% on average) and not the cost of eDiscovery technology.

If you refer to my blog about choosing your eDiscovery provider  you will see that I recommend you look at so many things before deciding. The technology and its features and functionality; its speed of processing; how easy it is for you to use; the track record and financial record of the provider; where it is hosted; the skills and qualifications of the people supporting the technology and working with you; and of course, the cost. I stand by all that I wrote. In my 15 years so far in the industry I have seen solutions come and go and I am sure this will always be the case.

Back to Andy and Logikcull, I repeat my congratulations on winning the award at LegalTech and my view now, as a past and present businessman and also as a person who is passionate about this industry, would be go out and sell Logikcull for all of the right reasons. Was I angry or upset to read Andy’s comments? No, but I was sure as hell disappointed.