eDiscovery is a significant part of the legal tech world. How will GenAI change it? Artificial Lawyer caught up with Jon Fowler, Managing Director of litigation consulting group Secretariat, to hear what the new wave of AI will mean for eDiscovery, whether deep fakes will become an issue, how this field has evolved over the years, and about what Secretariat does for law firms and inhouse teams.
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How has eDiscovery changed since you came into the field?
The eDiscovery landscape has dramatically transformed since I started in 2007. This is due to several factors:
- Increasingly complex types of disputes
- Technological advancements
- The sheer volume of data involved
- The emergence of entirely new data types
Data processing used to be a significant cost driver, but prices have plummeted as the industry matured. So, differentiation now comes from expertise in analytics and emerging data types.
In those days, eDiscovery primarily dealt with emails, documents, and occasionally audio recordings in complex financial cases. While audio solutions existed, they weren’t particularly sophisticated and heavily relied on manual intervention.
Today, the rise of collaboration platforms and chat applications has blurred the lines between structured and unstructured data. Thankfully, technology has caught up, offering seamless collection and processing for these diverse data types.
Predictive coding emerged as a game-changer, fundamentally altering how large-scale document reviews are conducted. During the financial crisis scandals (e.g. LIBOR, FX), companies paid lawyers exorbitant fees to manually review millions of documents. Thankfully, such practices are no longer the norm. There’s an expectation that technology will be leveraged to minimize review costs.
This shift has significantly impacted the cost structure of large disclosure cases. While upfront technology costs have increased, the reliance on manpower has drastically decreased, leading to a much lower overall expenditure.
The future holds even more exciting developments with the arrival of Generative AI (GenAI) in the eDiscovery space.
With GenAI, where do you see things going?
We can learn a lot from what happened with predictive coding here. In terms of adoption, predictive coding had its challenges. Many lawyers expressed concerns that predictive coding would replace human judgment and the nuanced decision-making skills they had honed through years of legal training. Concerns regarding its scientific validity, transparency, and potential biases also sparked heated debates and legal challenges.
Similar concerns surround the potential impact of generative AI on the legal profession. However, it’s essential to understand that, just like predictive coding, generative AI will not replace lawyers. While offering advanced capabilities, these tools still need the crucial human element in legal practice. In essence, generative AI acts as a powerful asset, streamlining workflows and allowing lawyers to focus on the areas where their expertise truly shines, such as strategic planning and client interaction.
While GenAI holds immense promise for eDiscovery, current implementations can be cost-prohibitive and need help with the massive datasets often encountered. As the technology matures and later versions emerge, we expect wider adoption due to increased efficiency and potentially lower costs.
How much will deep fakes become an issue for eDiscovery now?
The emergence of deepfakes presents a future challenge for eDiscovery, though its impact may be delayed. Since eDiscovery focuses on historical data from past events, the initial wave of deepfakes might be a minor concern.
However, as deepfake technology advances and becomes more prevalent in disputes, identifying and analyzing them will become crucial. This process will likely require collaboration between various disciplines, with digital forensics playing a central role. By examining metadata and identifying potential file manipulation, digital forensics experts can help determine the authenticity of electronic evidence in the face of deepfakes.
Do you see law firms handling more eDiscovery work now?
We’re seeing a rise in law firms handling eDiscovery in-house compared to the past. However, many firms still leverage specialized Alternative Legal Service Providers (ALSPs) for eDiscovery needs.
The decision to keep things in-house or outsource depends on several factors. Some firms manage more minor cases internally, while others prioritize factors like risk, complexity, or jurisdiction. Digital forensics and collection work are tasks most firms still outsource.
Interestingly, some firms have adopted a hybrid model. They outsource the actual processing but maintain a team of specialists who bridge the gap between legal teams and external vendors, managing the entire eDiscovery workflow.
Beyond eDiscovery, do you see GenAI changing other areas of litigation, from expert witness support, to case prediction, or other aspects?
Absolutely, GenAI has the potential to revolutionize various aspects of litigation beyond just eDiscovery. Here are a few areas where I see significant opportunities:
Drafting Witness Statements: GenAI can be incredibly powerful in generating summaries and highlighting relevant information from vast document troves (with human oversight). This can significantly streamline the often-tedious process of drafting witness statements.
Early Case Assessment: While a complete replacement for an in-depth document review might be premature, GenAI can be a game-changer for early case assessment. Imagine quickly obtaining summaries and case insights from large datasets, allowing lawyers to gain an early case advantage.
Case Prediction: GenAI holds immense promise in this fascinating area. As the technology matures and user comfort increases, we expect AI-powered systems to analyze case law and precedents, identifying trends and predicting case outcomes with greater accuracy.
These are just a few examples, and the possibilities are truly vast. As GenAI continues to evolve and people become more comfortable using it, we can expect its impact on litigation to become even more profound.
And, what does your company do in this sector?
Secretariat is a global independent expert services and litigation consulting firm. We work with the most prominent law firms and their clients. While we were founded as a firm specialised in the construction industry, we have grown and diversified over the past several years to serve other fast-paced sectors, including energy, healthcare, technology, and natural resources.
Our team, well known for the depth and breadth of our expertise, is located in major financial and arbitration centres around the world and our experts are now involved in many of the highest-stakes legal, risk, and regulatory matters.
Law firms, corporations, and governments typically use our disputes, litigation, economic, investigations, and data advisory services when they face high-stakes, ‘bet the company’ situations— and we deliver a broad range of services, including economic damages, valuations, forensic accounting, and quantum and delay analysis in disputes.
I joined Secretariat in January 2023 to set up our UK eDiscovery and Digital Forensics practice and lead a broader push into adjacent service areas. I have over 16 years of experience leading and delivering on large, multi-jurisdictional disclosure exercises, and I have a particular focus on financial regulatory investigations and large-scale complex litigation.
I help our clients with their entire disclosure strategy, from data scoping and collection to data processing, review, and production. Before joining Secretariat, I led eDiscovery and digital forensic services at Ankura, Navigant, FTI, and KPMG.
Thanks Jon for the incisive answers. Looks like GenAI is going to have a significant impact on eDiscovery and litigation.
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And if you found this of interest, then check out the Legal Innovators UK conference in London, on November 6th and 7th.
We’re already looking ahead to the landmark legal innovation event, with Day One for law firms, and Day Two for inhouse and legal ops – and eDiscovery will be an important area.
You can find more information here.
