Do SA law firms have an eDiscovery strategy?

One of my colleagues recently sent me this link to the article discussing the results of HBR's Law Firm e-Discovery Strategy Survey.

The contents and findings are interesting, as are the authors - HBR Consulting - I actually worked with them in London many years ago when they were Baker Robbins. They know their stuff and I do not doubt the validity of these findings.

The findings of their Law Firm eDiscovery strategy survey in the USA include that law firms are:-

  1. “..offering the full lifecycle of eDiscovery service via in house operations”
  2. “..investing in technology assisted review (TAR)… with 78% already implemented..”
  3. “..providing higher value advisory services including Information Governance, the defensible use of TAR and managing preservation/legal hold..”

HBR argue that providing these services has gone from a ..”novelty to a business necessity”. They go on to say that 93% of firms report that revenue from eDiscovery has exceeded expectations; that 71% say that spending on eDiscovery remains a high/medium/essential priority; and that one third are upgrading or enhancing their technology plans in 2015.

What does all of this mean and should SA law firms take note? In typical lawyer fashion, my answer to that question is Yes and No!

First we have to apply some perspective here. We do not know the extent of this survey - for example if you ask 100 law firms all of whom have in house eDiscovery, then guess what you have 100% of law firms using in house solutions! If you ask 1000 and 100 say yes then you have 10% right? The truth is somewhere in between as discussed in my previous blog post on in-house vs outsourcing.

In the USA, the vast majority of global used litigation software is manufactured and sold and it is a big business employing thousands of people. The industry, which we call Litigation Support is also a huge business, again, employing many many thousands of people across the USA. There are so many service providers and so many law firms that have an in-house litigation support department along with in-house software for data processing and hosting. They have been doing this for a long time - certainly since the 80’s - far longer than anyone else. They are and always have been a few years ahead on these matters of the UK who, in turn, are a few years ahead of SA (some may say light years but I am far too polite…and optimistic!). This all adds up to an “industry” and part of USA’s economy. It is different there than anywhere else, by a long way and I guess the UK (and perhaps Canada) is the nearest with many service providers and some law firms bringing the technology in house. In my post above I talked about ROI for law firms and the difficulties that exist in this respect but now that I have been fortunate enough to spend more time with SA law firms and service providers, I want to expand upon my thinking about this strategy and eDiscovery in SA.

Firstly, I stand by my comments that it is unlikely to the point of being almost impossible for a law firm in SA to bring the full suite of eDiscovery technology in-house, and I go further in saying that I would not, and have not advised it in any discussions that I have had with law firms here. I did mention that one top tier law firm has forensics in-house and is doing very well with that, and I commend them for doing so. However I do not believe they will go further and bring in the next stage of the technology process and, to repeat, I would not advise them to do so. The main and obvious problem is that all of this software is hugely expensive and, largely, it emanates from the US which means it has to be purchased in US dollars. The services would then have to be sold in ZAR - just take a look at the exchange rates and it is simply not feasible. There are a few technological solutions that could be acquired by SA law firms, but not the full processing and hosting solutions. The same applies to service providers, where there are only a handful in SA and the ones with the most comprehensive are the Big Four who have the benefit of global licences, which means that they can sell the services in SA at appropriate rates. Some of my contacts here have asked me if I sell software solutions or do processing given all of my experience and having done so successfully in the UK for many years. The answer is a resounding “No” for the reasons I have just specified, but also because I have deliberately set my stall with a truly independent banner. I am convinced that I would lose that banner if I was selling software solutions.

From working with some of the top law firms and litigation attorneys in South Africa, in some cases joining them in client meetings, I am encouraged to see that eDiscovery strategies are being  considered here, and I have been able to advise on best solutions. Another thing I learned is that a number of law firms have used, and are using eDiscovery technology on certain cases, particularly the top tier firms, and I have engaged with most of them. Furthermore, as I say, there is a definite will to use the technology more.

So, what is the hold up? Without doubt more knowledge, information and education, which is where I can help as the only independent eDiscovery Consultant here in SA, but there is another problem - skills and experience with the technology. Going back a few paragraphs I talked about this being an “industry” in the US, UK etc. and well, simply, it cannot be described as that here as yet. This means that there are not enough really knowledgeable and technically capable people here, especially when you add in to that some knowledge of the litigation process and tactics. One of the reasons I can say this is when I asked some law firms how they found the technology, most were very complimentary but all expressed certain irritations or things they felt the software ought to be able to do. I know that the technology can do all of the things that law firms commented upon, which leads me to believe that there are skills and/or training issues from the service providers. Again, these are big decisions for businesses as the service providers need to invest more to their already sizeable investments in skills and people. At the end of the day businesses of any kind have to make profits in order to invest and in order to make profits they need more cases/projects - vicious circle it may be but is it not the same for any business or industry?

Reverting to the heading of this post “Do SA law firms have an eDiscovery strategy?”, I guess the answer is that some do, and I am led to modestly believe that more do now that I am on the scene. It is why I am here and working as hard as I can. Please contact me with questions, suggestions, or for assistance with any respect to eDiscovery and Litigation Support: law firms, corporations and service providers - I know I can help you. You're also welcome to let me know whether there are topics you'd like me to cover in my articles and on my blog. 

I repeat that I just do not see law firms bringing full scale eDiscovery solutions in house in SA and that we are some time away from a case in SA using TAR although we may be nearer now following the meetings I have had!

Finally, I cannot leave this post without mentioning my latest one on Phase 2 of changing SA’s Discovery Rules, as those of you who have read my previous posts or discussed the topic with me will know, I am committed to progressing eDiscovery rules in SA in order for us to compete globally.

Once again I am humbly grateful for the vast numbers of you that have read it and contacted me with support. I was so heartened after I had written the first post on the subject but this one has been viewed and commented upon by twice as many of you - THANK YOU! I am still working hard on that and will keep you informed.