Risk Management & Early Case Assessment
Costa Kypre, Kroll Ontrack
The expectant tidal wave of litigation that normally follows any significant downturn in the global economy does not seem to have materialised. It appears that companies are more focussed on ensuring their long term survival rather then focusing on commencing costly litigation proceedings.
However, many companies acknowledge that there is still a requirement to ensure any potential risk is managed effectively, to make certain they can react quickly and more importantly, cost effectively when and if an issue arises.
One dilemma for in-house teams tasked with managing risk and responding to potential litigation is the constant pressure to reduce their budgets, leaving many firms in the unenviable position of having to identify and manage potential risk with less resource at their disposal, whilst the amount of data passing through any company is growing exponentially year on year.
Whether a company is responding to a disclosure request or completing an internal investigation, the key challenge for companies is to quickly ascertain which individuals are pivotal to an investigation and which of their documents are the most pertinent to the case.
How Can Technology Help
There have been significant developments with the technologies that can be utilised to collate, sort and decipher large data volumes which consequently has made the tools that incorporate these technologies much more efficient.
The market has also recognised the need to provide a more tailored service to companies and as a result many firms providing electronic disclosure and risk management technologies now have a number of pricing models and tools on offer to ensure any project, no matter how large or small, has a proportionate solution.
Filtering and Sorting Techniques
The key developments in recent years have been in technologies that can help a review team assess, view, sort and group their documents in such a manor that online review can be performed in a speedy and consistent fashion.
There are a number of techniques that can be utilised to help present data in a practical and intuitive way. Some of these techniques can greatly enhance the efficiency of a review:
- Concepts - a data set can be separated into themes, so reviewers can prioritise an investigation and focus on individual topics. For instance, a concept discussing the setting of prices may be of more importance than emails discussing one's holiday plans.
- Audio Technology - it is possible to phonetically search audio files that are contained within a data set without the need to have them transcribed.
- Visual Analytics - graphic illustrations of who, how frequently they were communicating and what the subject of their messages were.
- Duplicates - when a reviewer categorises a document, any exact duplicates of that document can automatically be categorised in the same way.
- Near Duplicates - documents can be grouped together depending how similar they are to each other. A good example may be multiple versions of the same contract, all of which contain minor differences. Leading review tools will clearly highlight the differences, so a group of documents can be categorised at the same time to reduce review time.
- Email Chains - this technology will direct the user to the email in the chain that contains all the other emails. The user can then categorise the inclusive email and bulk categorise the other emails within the chain.
- Machine Translation - some review platforms now allow users to machine translate documents on the fly. Whilst machine translation will never be 100% perfect, it will provide an understanding of the document, so a decision can be made as to whether it is potentially relevant and if a manual translation is required.
These features have been used successfully on a number of occasions to help reduce the amount of time that is required to investigate, review and produce information in any potential litigation or regulatory matter. These technologies also ensure documents are categorised in a consistent fashion.
Data Preservation and Taking a Targeted Approach
One of the key strategies to emerge in recent years is for companies and their legal representatives to be as targeted as possible when gathering and reviewing data. Previously, it was customary for a review team to collect everything and then simply sort the information into chronological order.
It is normally advisable to ensure the original source of data is preserved and this could entail a number of activities i.e. removing back up tapes from any rotation system and/or the imaging of key individual’s personal computers, hard drives and USB keys. This will make certain that there is a secure copy of the original data at a specific point in time.
There are various techniques that can be used when extracting data once it’s been preserved, to make sure it is focused on the most relevant documents.
- Focus on key custodians
- Only collect documents that fall within a key date range
- Capture documents that are responsive to certain keywords
- Only extract certain document types
This will ensure that the cost of any initial collection and the subsequent review exercise is kept to a minimum.
During the initial review of the targeted data set the reviewer will then be able to focus in on key individuals and key documents – this initial review would be ideally suited to an early case assessment tool. Once more familiar with the data, the reviewer can then go back to the original forensically sound data set and expand their search criteria i.e. capturing new custodians, expanding the number of keywords or extending the date range if required.
Early Case Assessment - how do you filter something if you have no idea what to have in the first place?
Early case assessment is the new buzz term within risk management technology and can have significant benefits.
Many early case assessment tools allow users access to advanced features including concept searching, topic grouping, visual analytics, near duplication, email chain analysis and powerful keyword searching capabilities, commonly found within full blown review platforms. These capabilities enable users to gain a window into case themes, relevant custodians, key time frames and critical communication patterns within a data set before incurring processing and review costs.
In our experience early case assessment (ECA) tools are often used in two common circumstances:
A) First Pass Review - Uploading All Data: The ECM tool’s analytics and search functionality can be used to quickly whittle down a data set into a smaller sub-set of relevant documents. These documents can then be exported from the ECA tool into a full litigation support tool for a more in-depth review to take place
B) Understanding - Uploading a Sample/Targeted Set of Data: An ECA tool can be ideal when clients are faced with a data set they are unfamiliar with and require a cost effective means of checking what they do and do not have before committing to a specific review strategy / investigation.
The ECA tool can be used to validate potential keyword lists and the visual analytics can be invaluable in determining which other custodians within the original data set may need further investigation.
This can be crucial when companies are assessing a potential risk and do not want to incur a costly investigation before they know the degree of risk they face; by utilising an early case assessment solution the company can keep their costs to a minimum. They will also be in a good position to quickly and cost effectively launch into a more in-depth and focussed investigation if they do come across a potential matter that warrants a more substantial review.
Conclusion
The emergence of sophisticated early case assessment tools can certainly provide firms embarking on an internal risk management or disclosure exercise, with a means of a approaching the task of managing data in a structured, consistent and cost proportionate way.
In the current economic climate the staged approached of targeting potentially key data and then utilising technology and early case assessment tools, will have the dual benefit of significantly reducing the number of hours required to complete a review or investigation, without the need to commit to a large upfront overhead to deploy the technology.
Costa Kypre is a Legal Consultant at Kroll Ontrack's office in London.
Disclaimer
This document is neither designed nor intended to provide legal or other professional advice but is intended merely to be a starting point for research and information on the subject of legal technology. While every attempt has been made to ensure accuracy of this information, no responsibility can be accepted for errors or omissions. Recipients of information or services provided by Kroll Ontrack shall maintain full, professional, and direct responsibility to their clients for any information or services rendered by Kroll Ontrack.
Copyright 2007 Kroll Ontrack, Inc & Kroll Ontrack Legal Technologies Ltd.
