Helping clients reduce their litigation risk exposure might sound counter-intuitive to legal services firms whose lifeblood is billable services. And that is precisely what Discovery Risk Mitigation sets out to do. Firstly, to ensure that clients understand how they are going to respond to a litigation event but equally important, how they can mitigate against future challenges.
Remediation Leading to Prevention
The first and most pressing consideration tends to focus on addressing and cleaning up the problem, a Discovery Risk Mitigation thread I often refer to as remediation. Which response processes should the client initiate? Which resources (both internal and external) should be involved? From a technology perspective, this is also where conventional eDiscovery services come in; identifying, preserving then collecting relevant Electronically Stored Information (ESI), ingesting, culling, reviewing, and so on. A well-prepared client is generally better placed to avoid penalties and sanctions for failures to preserve discoverable data or to respond within deadlines. What’s more, implementing sound data governance ahead of time will also help reduce any surprises in the dataset. And of course, to keep the costs of eDiscovery in check, with a pre-arranged strategy very likely to be cheaper and faster than an ad-hoc approach when under duress.
Along with the professional advice and skills that the law firm delivers, there will increasingly be more innovative technologies brought to bear to assist in expediting and making eDiscovery processes both more effective and more efficient as the sheer volumes of ESI increase. One might argue that over time, the cost of providing such services will tend to decrease whilst the speed of delivering them increases, irrespective of the increases in data volumes, much like Moore’s Law which defines the relationship between processing power and cost in the world of computing. The eDiscovery process itself becomes increasingly a commodity, and once that happens, the race to the bottom is likely unavoidable.
So, with the prospect of this spectre looming large, how does a law firm differentiate itself with respect to eDiscovery?
Clearly, there is much more to litigation than the eDiscovery process itself. The expertise of fee-earners, the professional advice offered and an understanding of a client’s business built up over a period of time, are but three critical factors. But it is an extension of those strengths that perhaps provides an answer.
Discovery Risk Mitigation
After the dust has settled, the second Discovery Risk Mitigation theme of mitigation comes into play. The methodology itself isn’t so much about understanding the specifics of any particular regulations, industry by industry, but is more about a grassroots strategic approach to improving governance of the data that inherently contains the risk. However, when coupled with the law firm’s expert industry-specific advisory services, it provides a compelling approach to managing future risk. By taking such a proposition to its clients, a law firm can strengthen its relationship and the breadth of services and advice provided. Clients may also be grateful for the reduction in stress that improved preparedness brings!
It’s more often than not the case that organisations retain far more data than they actually need and in-so-doing expose themselves to the inherent risks that sit within it. Yes, there will be clients in highly regulated industries where long-term data retention is mandated. However, it’s still often the case that even after its expiry, data is not defensibly deleted. Aside from the sheer cost of storing expired data, there is the very real prospect and cost of it all being subject to disclosure should litigation or an internal investigation arise. Or more to be leaked or hacked, in the case of a cyber-attack. A law firm applying their understanding of a client’s risk appetite, regulatory frameworks, and historic challenges can positively influence the client’s decision making on future governance policies and ultimately, help them help themselves.
Making Discovery Risk Mitigation a Reality
For our part, Salient can not only advise on the technical implementation of improved data governance but can also provide the latest eDiscovery solutions and services as essential components of an efficient Discovery Risk Mitigation process.
And aside from their expertise and advice, law firms are also favourably placed to build and iterate industry and subject-specific machine-learned models, based on their access to relevant content for training those models. The resultant ‘intellectual property’ can then be applied to new client situations, not only reactively but also proactively.
To conclude, rather than viewing preparedness and Discovery Risk Mitigation as a threat, I believe it offers great potential to extend a law firm’s advisory services and deliverables at a time when the eDiscovery service itself is becoming more commoditised. Why not get in touch to discuss how a more proactive approach could benefit you and your clients?