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Working with technology to find the hidden story

Tracy DrynanFinding a hidden story can be crucial to winning litigation but finding it can often take a huge amount of discovery – which can be costly and takes time. Whether it’s buried among a thousand or ten million documents, legal teams need to be able to access the “hot documents” or the story telling documents quickly, to ensure they know the real story and can craft their winning argument. But, with external factors like hybrid working practices changing the way people work, legal teams must find new ways to stay ahead.

Uncovering evidence of wrongdoing

The are many reasons a general counsel might need to conduct a document review. It may be in response to a regulator’s request for information or because they want to investigate an internal event, such as following a whistleblowing incident. A general counsel will want to assess their organisation’s vulnerabilities. After all, an internal investigation that uncovers evidence of wrongdoing can prompt a decision to settle out of court, potentially saving the organisation millions of pounds in legal fees. 

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General counsels typically have a limited budget for document review outside of litigation but by taking a strategic approach, it needn’t be expensive. Strategically knowing where to look and what to look for significantly reduces the resources and time necessary to craft a story and, subsequently the cost.

Strategic strike team 

A disclosure request is always worded broadly, so a ‘classic’ disclosure review will tend to be overinclusive. Everything will be thrown at it, including the kitchen sink. The assumption is that amongst all this will be a small pile of ‘hot’ documents – the information that will tell the whole story. 

But, as this isn’t really the objective of a typically broad, classic review, finding this information is best achieved by using a small strike team of between two and five people, working in parallel to the review team, and whose dedicated mission it is to locate these story-telling documents. To do this, they will need access to the entire dataset – whether it’s one million documents or ten million. If they encounter something of interest, they can then look elsewhere in the database to help them build the bigger picture. 

This small team needs to be completely immersed in the data, able to interrogate the whole database. And, while humans will be very much in control, their capabilities can be enhanced through the judicious use of technology. In a case of fraud or insider trading, for example, communications analytics, histograms, and language analysis tools can help provide a better picture of who’s talking to whom, who’s showing signs of stress, and when anything unusual occurs. 

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Complexity and accessibility 

Technology and tools such as these are only becoming more important in helping general counsels find the hot documents they seek among the huge – and growing – volume of data they need to comb through. While general counsels have been required to tackle massive amounts of data for many years now, recent developments mean that data is becoming increasingly complex and hard to access. 

The pandemic, for instance, brought with it a fresh set of challenges. A shortage of corporate laptops for legal teams suddenly forced to work from home meant many people began using their own personal devices. Many organisations didn’t have policies and procedures in place to cover the control of data on these devices, though, so general counsels looking to investigate certain matters found themselves unable to access that data. Furthermore, the use of different cloud collaboration services – Google Drive, Microsoft Teams, Dropbox, and more – led to a significant variation in the types of data. 

What’s needed, therefore, are tools that are capable of processing and consolidating all this data, in whatever format it’s held, so that general counsels can interrogate it as one dataset, to find the vital information they need. 

Working in partnership

Information retrieval technology has come a long way in recent years, especially for commercial and consumer use. In the legal world, however, there’s a much greater need for accuracy. The truth is many people expect to press a button and achieve the results they seek. Unfortunately, it’s not that simple. 

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The tools we have at our disposal are undeniably powerful; they’re capable of quickly traversing huge amounts of data and identifying patterns. But they’re not yet as powerful as the human brain. Only in partnership with experienced and skilled legal professionals will we be able to get the best out of these tools. Once we’ve pointed them in the right direction, they can then explore vast data sets more efficiently, unearthing the valuable insights and data points needed to identify those “hot” documents upon which a legal argument might rest. 

In the future, such tools might be self-sufficient, negating the need for human input and guidance. For now, though, their value lies in supporting and augmenting the work of the general counsel’s strategic strike team. 

Tracy Drynan is Principal Consultant at OpenText and has extensive experience across the eDiscovery lifecycle, including 15 years conducting and managing investigations, interpreting Requests for Information and Complaints to identify sources of critical and story forming information, developing strategies for targeting and gathering critical data and managing information collection. Prior to joining OpenText, Tracy was a senior attorney with Drinker Biddle & Reath LLP.
 

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