TRENDING Comment: The rise of the eDiscovery professional
By Clare Chalkley, vice president, legal services at Integreon
Recently, I had the pleasure of moderating a panel discussion organised by the ACEDS London Chapter. The topic for the evening was professional development in the eDiscovery industry.
We were fortunate to have a panel comprised of individuals representing different sectors and types of organizations – law firm, technology, software and professional services. Many thanks to Clare Longworth (Relativity), Harvinder Channa (AlixPartners), Charlotte Hill (Penningtons), Jeff Shapiro (Clifford Chance), Gregory Campbell (Everlaw) and Amit Pandit (APT Search) for their insights. Our discussion about the current eDiscovery career landscape and what the future might look like for the profession was very productive.
Working with the panel and taking part in the event got me thinking about how far the profession has progressed over the past decade or so.
I searched for a definition of an eDiscovery professional and found “…tech savvy legal professionals who help identify, preserve and manage electronically stored information”. A pretty generic description and having worked in the industry for many years, I would say that it only scratches the surface.
Also, it portrays eDiscovery as a ring-fenced industry, completely separate from the process of law – or more precisely, litigation. The low-key reference to any legal context is dangerous and perhaps explains why many lawyers have, hitherto, struggled to treat eDiscovery as relevant or central to their responsibilities. In my view it is critical that, important though it is, eDiscovery is seen as one part of a process that also includes pleadings, witness statements, expert evidence, etc. Unless the context is properly recognised, there is a real danger that some lawyers may continue to dismiss eDiscovery as a necessary evil and perceive it as an insignificant silo, when in fact, it is the source of the very evidence likely to determine the outcome of the case.
Historically, it was the role of the litigation support manager to deal with the collection, processing, review and production of documents in a case, but that job title seems to have been subsumed by all things “eDiscovery”. Most commonly, the role existed in law firms but now, there are opportunities across many sectors including financial organisations, regulators, corporates, tech firms and alternative legal service providers. The growth of the role has been dramatic and swift.
For many years, the perception of eDiscovery was that it was something that happened in the background. “Techy” people took emails and MS Office files and turned them into document databases for paralegals and lawyers to review.
Now, due to the proliferation of electronic communication, social media, audio, and other data types which need to be interrogated for disputes and investigations, the expertise required to navigate the collection, processing and analysis of this data has never been more in demand. New ways of communicating in business are emerging which present challenges with collection and review. Technology providers are working hard to ensure that their tools are capable of handling this information. The landscape is evolving rapidly, and eDiscovery professionals are finally being recognised as having an integral role in the legal process.
Interestingly, there has been an upturn in the recruitment of individuals with eDiscovery expertise by law firms. And the type of experience the law firms are looking for? They want people who have worked in the eDiscovery provider space with technical and project management skills. With the availability of cloud-based eDiscovery platforms, there is no longer any need for firms to invest in expensive IT infrastructure and support. With the right resources and a strong appetite to bring more of the income-generating tasks back in house, law firms can take control of the data management elements of a case which may have previously been outsourced to external providers. This increasing demand for talent can only be a good thing in terms of professional recognition and remuneration.
So, what makes a successful eDiscovery professional and what does it take to succeed in the industry? Currently, there is no recognised UK-specific qualification which measures an individual’s level of competence in the principles of eDiscovery, no UK version of the ACEDS exam.
There are technical qualifications which can demonstrate skill levels in eDiscovery software such as Nuix, Relativity, Brainspace, etc. There are cyber and forensic specific qualifications, project management qualifications and certification in GDPR and data protection, all of which are incredibly valuable and relevant to this industry.
But does a piece of paper alone validate an individual’s suitability to work in the industry? For certain specific roles, absolutely. Qualification and certification demonstrate a level of credibility which is critical as the prominence of the role increases. As alluded to earlier, “eDiscovery” has evolved as a term. It is a generic term which now covers all aspects of data identification, collection, management, interrogation and collection. eDiscovery also means different combinations of the above to different people. Accordingly, a general qualification or certificate does not necessarily indicate a recognised expertise in the area of eDiscovery that may be the focus at any one time in a matter.
In my view, the ideal skill set combines technical ability, knowledge of the rules and legal process, flexibility, adaptability, and a willingness to roll up one’s sleeves and get stuck in. This is still a new field of expertise and most training occurs on the job or through attending seminars or using on-line material. Training is not always a formal or measured process, so it is essential to show initiative, enthusiasm and curiosity and to keep pace with the continuing advances in technology.
Although the principles of eDiscovery remain consistent, the environments in which they are practiced can vary immensely. For example, working for an eDiscovery provider may offer a solid foundation in handling and processing data, training in review platforms, best practice for review workflow and eventually client contact and consulting. Many providers offer career structure and career progression opportunities.
Being part of an in-house law firm eDiscovery team can mean that you are working directly with clients and lawyers throughout the whole lifecycle of a case. You could be involved in evaluating and instructing vendors, preparing technology and review budgets, providing strategy and guidance to the legal team around collection, analysis, review and production. The job description may well be broad.
Within a bank or corporate eDiscovery department, the team faces the dual challenge of balancing legal eDiscovery requests with managing the costs of associated with the data once it is identified and collected. In addition, they need to have a comprehensive understanding of where and how the organisation’s data is stored.
It is my belief that the skills acquired in each sector can transfer fluidly from one to the next.
Being successful in the eDiscovery profession requires a wide and complex skill set. Technologist – yes. Legalist – yes. Teacher, interpreter, translator, project manager, mentor – certainly. Experts require a deep understanding of the technology and processes required to manage the data involved in resolving a dispute. They also need to have the ability to recognise (and proficiently argue the case) that technology is not the answer to every problem and that the tail should never end up wagging the dog! As an esteemed colleague of mine once commented – “eDiscovery technology is like a Swiss army knife: if you open all the tools, you can’t use it efficiently; you need to know which to use when”.
Ultimately, the role of the eDiscovery professional is to support the legal team and win the case or resolve the dispute. How we get to that outcome is by understanding that evidence is key and that much of the role is the search for and management of evidence. Technology can help us understand the evidence, but it must be used in context to support the legal process, not become a whole new problem.
The re-shaping of the traditional law firm that technological disruption has brought about has also changed the nature and background of those contemplating a career in eDiscovery. Whereas before it was likely that the eDiscovery professional was the stomping ground of former paralegals or technologists, the new generation are qualified lawyers and law degree graduates. This may be due to the limited number of training contracts available to the ever-increasing volume of students graduating with a law degree. Thus, going forward, we may well see that eDiscovery will provide a new entry point to the legal profession itself, to supplement the current trainee-associate-partner route.
The industry is still new and evolving and there are exciting opportunities available. New roles are emerging and new professionals with incredible skills are coming into the market. It is an exciting time to be involved in the eDiscovery profession, which is an increasingly important and necessary part of the legal industry service offering.
About the Author
Clare Chalkley is vice president, legal services at Integreon, a global leader in alternative legal and business services for law firms, corporations and professional services firms. Based in the company’s London office, Clare focuses on litigation support services and document review for law firms and corporate legal department clients. Prior to joining Integreon in April 2019, she was litigation support manager at Clifford Chance. Email her at firstname.lastname@example.org.