I didn’t expect to make partner when I joined Holland & Knight in 2019 as its head of legal support services. My job is to oversee our e-discovery and fact-finding unit, some aspects of our innovation and the technology-driven solutions we offer our clients. While I do represent clients, my main role is operational.
Before returning to Big Law, I spent 10 years in consulting, most recently at a Big Four accounting firm. I didn’t stray far from the practice: I managed e-discovery for large cases and large corporations, providing advice on litigation readiness and defensible data disposition, efficient document review and especially on the use of modern technology, such as technology-assisted review, to help clients and lawyers cope with growing volumes of unstructured data.
I learned how to build and run a business, how to manage people and how to oversee complex projects.
My career path into e-discovery is no longer uncommon, as e-discovery has become professionalized in the past 15 years. Many young attorneys went into the field when they couldn’t find regular law firm jobs after the Great Recession of 2008.
In 2009, I left Big Law to join an e-discovery consulting firm, where my experience as an attorney was desirable. There are several of us who did the same, but it continues to be rare to move from the law firm to an e-discovery consulting firm, and back into the law firm.
A New Model Emerged With E-Discovery Companies
The e-discovery industry has continued to grow. After the turn of the millennium, with exploding volumes of client data and increasing technical complexity, the law firm business model did not support large-scale document reviews.
We saw the first wave of e-discovery companies, who provided data processing and hosting, electronic review tools for attorneys, and the technical capabilities to access, search and produce electronic documents. We started using temporary attorneys to staff document reviews, as well as relying on outside service providers.
This model had advantages and disadvantages. Apart from the obvious advantage of lowering the cost of large e-discovery projects by avoiding associate rates for document review (which amounts to 75% of the litigation budget for many companies), it also led to rapid innovation in the space and professionalized the handling of unstructured client data in discovery.
Advances in the law—most prominently the 2006 changes in the Federal Rules of Civil Procedure, which introduced the concept of “electronically-stored information,” and the acceptance of machine learning technologies in 2012—have improved the situation for litigants today, although controlling costs remains a significant challenge.
The disadvantage of the model is that the discovery process was divorced from the fact-finding and litigation strategy. Ultimately, discovery is about establishing the facts, finding the documents supporting the facts, and enabling counsel to rise in court and tell the story of what happened. Instead, e-discovery seems to be about responding to discovery requests as efficiently as possible, drawing on increasingly commoditized services.
Finding out what happened, or how to present the facts, happens in a separate, second step managed by the law firm. This bifurcation creates inefficiencies that are harder to spot than a per-gigabyte hosting charge.
A Solution Lies in Three Changes for Law Firms
The solution lies in three simple but profound changes in how law firms serve their clients: 1) sophisticated project management, 2) embrace of sophisticated technology and 3) reintegration of e-discovery into the organic fact-finding process managed by merits counsel.
Every litigation is a complex project, and e-discovery can be a challenge, because it combines tricky information gathering from the client, consequential negotiations during the meet and confers, and advanced technologies—not to mention many pitfalls and specialized knowledge. As William Henderson noted 10 years ago, U.S. lawyers are evolving from generalists and specialists into project managers. Successful law firms of the future will need to be efficient project managers.
The second related strategy is to fully leverage modern machine learning, text classification, and automation technologies: We are at the beginning of an era where attorneys can understand the information in a million documents without having to read a million documents.
In the early days of predictive coding, it seemed that parties who wanted to leverage such technologies should be penalized through the imposition of heightened transparency requirements. The most common reason that litigators still choose not to leverage existing machine learning technologies is the desire to avoid having to negotiate their use with opposing counsel. Clients won’t continue to pay for this self-defeating approach.
E-discovery is returning to the law firm. The task of determining whether emails or chat messages are responsive to a discovery request is becoming easier and cheaper to handle. The task of turning a million pieces of information into a story that counsel can tell is becoming possible. Thus, the insight, creativity and experience of litigators can once again shape fact development from the beginning, rather than being relegated to an awkward, duplicative “depo prep” six months after the close of discovery.
Rather than placing e-discovery tasks on a separate track, the most effective representation will integrate e-discovery and the merits strategy, even if data volumes and document counts make our heads spin.
Similar forces are at work outside e-discovery. Due diligence for corporate transactions, contract analysis and abstraction, and effective management of large litigation and IP portfolios are just some examples of areas where advancing technology and sophisticated legal process management will lead to a reintegration of tasks that were once the core work of law firms.
I understand my role at Holland & Knight as helping the firm set these trends rather than merely follow them. Law firms must continue to evolve to better serve our clients. My recent elevation to partnership in a non-traditional role signals such a commitment.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
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Manfred Gabriel is a partner in Holland & Knight’s New York office who leads the firm’s Legal Support Services organization. In this role, he oversees the firm’s comprehensive and integrated e-discovery and fact-finding unit. He teaches e-discovery law at Cordozo Law School.