The Editor interviews Scott Kane , Partner, Squire, Sanders & Dempsey L.L.P. Mr. Kane is a litigator and the Co-chair of the firm’s E-Discovery & Data Management Team.
Editor: We are witness to an emerging wave of change in electronic discovery. What is driving these changes?
Kane: Primarily cost, and to a lesser extent, fear of sanctions. Cost is driven by the size and nature of document populations in modern discovery. Electronic document populations are typically much larger than those at issue historically in paper discovery cases. The needle is buried in a larger haystack. The other cost driver is the ephemeral nature of electronic data, i.e., it is not fixed, making it harder to deal with. The significant cost of collecting and reviewing electronically stored information in modern litigation is spurring approaches that seek to limit rising discovery costs, but which do so in a reasonable and defensible manner.
Editor: Would if be fair to say that e-discovery as a business process and as currently conducted is actually broken?
Kane: I don’t know if I would say it is broken, but it’s far from ideal. Current practices are not cost efficient. It’s a challenge to keep electronic discovery costs from becoming a determining factor in litigation, particularly in cases where the amount in controversy does not justify “bet the company” type efforts. The current process has to catch up to the demands of modern practice – not just the demand to meet discovery obligations, but also the demand to do so in a cost-effective manner.
Editor: Squire Sanders has announced a new approach to electronic discovery – Intelligent Discovery. What is behind your approach?
Kane: Our approach seeks to reduce client costs by limiting, to the greatest extent possible, human review of large data populations. Modern litigation delivers a tsunami of data. The cost of reviewing it in traditional fashion – linear page-by-page review by teams of human reviewers – is becoming prohibitively expensive. We combine review by experienced trial lawyers with automated analysis and prioritization of documents, as well as sampling and other best practices, to reduce document review costs. You can never completely eliminate human review, nor would we advocate that. But we can significantly reduce its scope and still deliver reliable, defensible, high-quality review results.
Editor: Is Intelligent Discovery mainly technique or mainly technology, or both?
Kane: It’s both. One without the other is not sufficient to achieve the desired result. Certainly, there’s a strong technology component insofar as you are using technology to leverage the efforts of experienced human reviewers. But it’s not sufficient only to rely on technology – you need to make educated, reasoned decisions about how best to apply the technology as part of a broader workflow. You also need to ensure that you’re employing the technology in a way that is reasonable and defensible. Combining the technology with a well thought out process lets you deliver enhanced review quality in a cost-effective manner.
