The proliferation of digital documents and the changing litigation landscape make efficient document management more important than ever
Q: How can document management help a firm predict and control costs following the implementation of the Jackson reforms?
Stewart Simpson, acting head of knowledge management, Weightmans: The control of costs has shifted from being important to being fundamental to the litigation process. A document management system enables a firm to identify with more certainty the prognosis of a case, by allowing it to access a ‘precedent’ system showing how similar matters have progressed.
Helena Yearwood, risk operations manager, Slater & Gordon: It allows firms to predict the typical time to be spent dealing with a case which will, in turn, enable the right resources to be directed to it.
It’s also a training resource, guiding junior case-handlers through the steps of a claim. It ensures a consistent approach is taken across the firm.
Neil Mirchandani, partner, Hogan Lovells: Organisations with good information governance will be able to identify, preserve and collect documents required to respond to an event. They will be best-placed to provide information quickly on potential disclosure documents that are critical to preparing the costs estimates now required prior to the first case management conference.
Poor information governance means it is not always possible to identify the required documents at source, which means over-preservation and over-collection. This has a significant knock-on effect on the costs of litigation because unnecessary time and money is spent by external litigation support providers and lawyers trying to sort the wheat from the chaff.
Richard Bamforth, head of litigation, Olswang: It helps in predicting and controlling costs because it enables a lawyer to quickly and easily identify the size and scale of the data they are dealing with, and the time and resource likely to be required for dealing with it. This means they can produce a more accurate estimate of the cost of the disclosure process.
A good system lets a lawyer go straight to a particular custodian’s data and, by conducting a few simple searches and selecting particular date ranges, provides them with an estimate of the number of documents they need to view. It also removes the need to undertake mass-culling and de-duplication exercises.
Angela Pearson, partner, Ashurst: The new approach to costs management and, in particular, the requirement to estimate the costs of disclosure at an early stage and factor that into any budget, has increased the pressure on firms to predict disclosure costs accurately. Estimating and controlling e-disclosure costs is never going to be a precise science.
However, improved document management by clients means it is now usually possible to identify at an early stage the document population that needs to be considered. Data volumes can then be measured against previous projects to give an indication of the cost of processing and reviewing documents and decisions on strategy and proportionality can be taken in the knowledge of likely cost implications.
Q: Has your firm been looking at its governance policies to manage electronic documents better? What sort of issues have arisen?
Stuart Whittle, IS and operations director, Weightmans: For almost 10 years we have operated through our case management system that gives a matter-centric view of our cases including electronic documents. We also have an information security management system for the governance of information generally, including clients’ documents.
As with any system, the issues that arise are the requirement to continually reinforce, raise awareness, train and audit compliance with our systems together with the balancing risk against what is necessary for our business to operate efficiently. We also have to be able to deal with differing client requirements as to the appropriate level of governance in relation to electronic documents.
Yearwood: Effective document management ensures the maintenance of quality standards and best practice; it also regulates the way we present information about our offering externally. The firm can be confident a consistent approach has been adopted on strategy and in the promotion of its values.
Document management allows the lawyer to focus their talent and learning to resolve the case in hand and use technology to manage administration.
The cost-benefit analysis is also key. As technology improves so does efficiency and fee-earners are able to increase their capacity to manage files while maintaining standards.
In an age of cyber-attacks and hacking electronic document and data storage, security is of paramount importance and this, alongside client benefits such as ease and speed, is central to our policies.
Mirchandani: Information governance policies cover two areas: access and retention. With access, the key aspects are information barriers on client-related documentation and confidentiality assignments on all documents. This is closely linked to the conflicts process.
On retention, two points are essential. The first is defining a retention policy and keeping it up-to-date. The question is – how long should the firm keep each document? The second point is executing the policy. This means getting buy-in from users through training, monitoring and enforcement. Achieving success on all these points can be a challenge.
Pearson: The main challenge for law firms is to offer clients competitive options for document management and review. To enable this, we recently established a legal sourcing team in Glasgow with highly trained legal analysts. Document management and disclosure is one of their key workstreams. We’re already seeing keen interest from clients in our team working alongside their client teams for particular aspects of document management and in undertaking review exercises under the supervision of our disputes resolution team.
Q: What challenges arise from the variety in the type of data and documents being created electronically, these days?
Whittle: It’s less about the variety of documents than the size of the electronic files that needs to be dealt with and the secure exchange of documents over the internet. Again, our security management system sets out how to deal with information, including exchange.
Yearwood: We have to monitor the documents in use across our business so we have clear processes in place that encompass all levels of staff. Robust systems are a necessary part of governance. Our audit committee reviews document management as part of our business cycle; it’s not a ‘set and forget’. This system also assists us with demonstrating compliance to our auditors.
We also need to monitor the data we store. This requires processes to update and maintain the security of the way we store documents to avoid breaches or fines. We have found the variety of work we handle means each department has precedents tailored to their own needs.
While there is a significant benefit in being able to make firmwide changes to documents with a few keystrokes, this could be an Achilles’ heel. Version control must be monitored and centrally governed or issues can be replicated exponentially.
We monitor and review the developments of each business area to ensure the way we manage documents and monitor workflow is appropriate, while keeping clients’ needs and data protection central.
Mirchandani: The volume, variety and proliferation of electronically stored information is a challenge. As new forms of communication are used, so the policy needs to be updated.
Firms need to decide if their retention policies are content-based or matter-related; if matter-related, all content will take on the longest retention period of any single piece of content in that matter.
Further complication arises when dealing with cross-border transactions. In this case it is necessary to set guidelines on how content is managed and retained in each jurisdiction, ensure this is documented for reference purposes and then adhered to.
From a disclosure perspective legal teams need to be alive to all sources of documents. This does not mean they all need to be preserved and collected. It’s more that all those potential sources need to be at least considered with the right people at the client.
Bamforth: Retrieving data can be a problem. So much is now generated by devices such as smartphones that are not linked to a main data frame. It can be difficult to locate the device and persuade the owner to hand it over to be copied or searched. Another problem is that not even the best file viewer can read every file type, which means a lawyer reviewing a set of documents that includes many types of files may need external applications.
Pearson: There are many more potential data sources and issues that need to be considered when capturing evidence now. Documents such as web pages can be highly dynamic and attempting to collect personal and corporate data from the cloud can introduce legal and logistical challenges. Such factors increase the importance of planning and project management in disclosure exercises. For example, you may need to use a different review platform if the data population contains large volumes of audio files or to put special steps in place if you need to capture documents from Facebook or Twitter. The best way to manage such issues is to speak to service providers at an early stage.
Q: How up to speed are clients when it comes to document management?
Simpson: Factors such as professional, regulatory and statutory requirements, fiscal constraints and practical experiences have combined to create differing levels of effective document management among clients. Some are up with, if not ahead of, the curve while others are yet to appreciate the advantages.
Mirchandani: Increasingly. Clients and their general counsel may have similar case management requirements as their law firms.
All clients would accept the benefits of an effective information governance policy both in a business context and in relation to meeting document production requirements in litigation or regulatory matters. However, the ever-growing volume and variety of data, and stricter regulatory requirements, mean clients are increasingly focusing on understanding and controlling their data. In doing so, many find the cost saved by removing redundant and trivial data from their systems outweighs that of implementing an information governance policy. I expect this trend to continue.
Bamforth: Our large corporate clients, especially in the TMT sectors, are normally up to speed on document management. Others tend to be some way behind.
Pearson: Clients that have developed document management policies or practices are generally equipped to be more accurate and efficient in data capture when faced with disclosure obligations.
We’ve seen an increase in the number of clients that have invested in software to assist with the identification and collection of documents. This is generally a positive thing, but can be counter-productive if the limitations of the software are not understood or the client lacks the expertise to use it efficiently.