Q & A with Kevin Behan, McDermott Will & Emery’s National Manager of Litigation Technology

QuestionsShannon Adams, Executive Director of Davidson Technical Staffing, a Special Counsel company, recently discussed the role, use and best practices of litigation technology with Kevin Behan, National Manager of Litigation Technology for McDermott.

What is McDermott Will & Emery’s Litigation Technology team doing to bring the best level of service to its attorneys and clients?

Our firm is one of a small number of firms that has chosen to insource many of the services typically handled by vendors. In this way, we feel we can increase our value proposition to our clients and case teams by managing risk and lowering the overall cost of discovery.

The three components that are commonly discussed as critical to the delivery of quality services in almost any industry are people, process and technology. Our firm has spent considerable time and effort over the last few years developing all three of these components. In doing so, we feel that our case teams and clients view us as part of the solution to their eDiscovery challenges and not part of the problem.

In terms of technology, we have invested in a review platform that gives us the ability to leverage many of the feature sets that are commonly discussed these days as valuable in lowering the cost of discovery. Email threading, near-dupe detection, bulk tagging and clustering, to name a few, are tools that, when used properly, can significantly lower the cost of review. Of course, any discussion of technology these days must include a commentary on predictive coding or technology assisted review. We have predictive coding available for use within our review platform and view it as one of many tools at our disposal should the appropriate situation arise.

While advancements in technology are garnering most of the headlines when discussing eDiscovery these days, it is fair to say that no firm would achieve any level of success without a repeatable, defensible process. Our group has worked very hard to define our processes to a point where we are comfortable discussing strategies with our case teams and clients as well as opposing counsel and the court when necessary. It is also important to understand that, depending upon the requirements of the case, certain factors will require you to modify your processes and procedures. What shouldn’t change, however, is how you apply those processes within the case. Consistency of application goes a long way toward defending your processes.

Finally, we have spent considerable time working with our internal staff so they are comfortable with their role as project managers. As project managers, it is necessary to be a shepherd for the discovery process. So much of discovery these days revolves around understanding technology and nobody is better equipped to educate and train the lawyers about their clients’ systems, data processing and production issues than good project managers.

How do you see litigation technology evolving in the next 2 years? What specific tools, if any, do you see becoming the industry standard?

I continue to see companies working to develop technology-assisted review tools that will be more broadly accepted. The challenge for many, as I see it, is that they do not feel comfortable standing up in court (or signing their discovery certifications) and defending the completeness of their discovery decisions without having looked at all (or at least the majority) of the review set of documents.

I think most people understand that the tools that are being offered today increase the consistency of the decisions that are made. Unfortunately, tere are so many unknowns about a data set when only a small portion of the documents are being reviewed. Many people still see the decision to use these tools as “blind faith”. This is why having a rock solid process is so critical.

With apologies to my many friends who build and sell these tools, I do not see any specific tools as becoming the industry standard. I believe that using a well-known tool will gain credibility with those that are critical of using one of these tools, but, at the end of the day, the process that is applied will determine acceptance. We have seen this in the Da Silva matter. While the parties agreed to use predictive coding for document review, the entire debate revolved around how the tool was to be applied including whether the producing party was reviewing enough sample sets prior to completing their review.

How does the use of technology reduce litigation costs now? How do you foresee this changing in the future?

I like to look at litigation costs as hard and soft costs. Technology-assisted review is more than just predictive coding. The algorithms that provide the basis for predictive coding offer so many other opportunities for case teams and clients to lower the cost of litigation.

Since document review is commonly known as the most expensive component of any litigation, it is easy to see how shortening the review lifecycle will lower the cost of litigation. But how much money can you save if these same tools allow you to identify the key documents within days instead of months and provide the chance to negotiate a settlement without protracted discovery?  These analytical tools make it possible for case teams and clients to conduct true early case assessment and determine the true value of a case quickly. The savings that is possible here can be significantly greater than the lower cost of review.

Too often, clients and case teams see the initial cost of applying these tools as too steep to warrant their use. Hopefully, we will soon be able to show a greater majority of the marketplace that the cost of implementing these analytics tools is insignificant compared to the savings that will be realized from their use.

How can litigators get the most value out of their litigation technology specialists?

I feel that litigators miss several important opportunities to leverage their litigation technology specialists’ skill set by waiting to engage them once document production has commenced. Beginning with the identification stage of the EDRM, and continuing through the preservation and collection stages, litigation technology specialists can offer guidance to their case teams and clients that will help them focus on the important data and minimize cost and effort on potentially irrelevant data.

At McDermott Will & Emery, we work hard to have our case teams engage our department when they initially meet with the client and its IT team to discuss where the relevant data exists within the company. We continue to work with them identifying the data necessary for preservation as well as that which should be collected. We have seen that through this collaboration, we are able to eliminate waste and generate savings for our clients.

What alternative solutions can you suggest to a litigation firm that does not have a litigation technology specialist in house?

My recommendation would be to hire or train this type of resource for your organization. Being able to tailor your eDiscovery approach to your organization and clients is important. If, however, your budget does not allow for such a hire, many vendors offer these services.

What are your suggestions to a paralegal who wants to break into litigation technology?
Litigation technology provides a great opportunity for paralegals to branch out and explore new opportunities while leveraging their existing skill set. A key component of being a good legal project manager is having a solid understanding of the litigation lifecycle. Similarly, the role of the litigation technologist is to be a fact manager which is not very different from the role paralegals have had for years. The primary difference revolves around the medium by which the facts are presented and stored. As long as the paralegal is not a technophobe and is open to learning how to use new tools, litigation technology is a natural transition for the paralegal.

In terms of suggestions, I would recommend that paralegals take every opportunity to work side-by-side with their litigation technologists. Learn how the new discovery tools function, work with them as often as you can and don’t rely on your technology resources to do everything for you.

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