CCBJ Perspectives: How COVID-19 Has, and Will, Impact the Legal Profession

Dan Regard, president and CEO of iDiscovery Solutions, speaks with host Kristin Calve about the disruption of COVID-19 and the ability to design and pursue long term strategies in the face of this pandemic.

CCBJ: Tell us how you and yours are faring through these uncertain times.

Dan Regard: Well, thank you for the invitation to speak with you today. I've always been a big fan of CCBJ and it's great to be a part of your community and a part of this podcast series.

In terms of these uncertain times, I would say that we are very fortunate. This has been a huge disruption, obviously, to our normal lives, our clients, our employees, but our overall industry, litigation investigations, is intact and it's finding ways to work despite these challenges.

We recently had an all hands meeting within iDS and there we took the position, and we still take the position, we have had a dramatic short term disruption, but we are still sticking to our long term strategy. And when I say we're fortunate, it's because iDS in particular was well-poised to make some of the changes that were necessitated by COVID-19. We were already 50 percent remote prior to this pandemic. So we were able to switch to a 100 percent remote work from home literally overnight. We also were able to accomplish all three of our long term goals for 2020. We've installed a COO, Hunter McMahon, who's been doing a knockout job. We went ahead and opened up a London office, which was an international expansion that had been planned for 18 months. We decided to go forward with it and in April we did open our London office, and we're very happy with those results. And we also started a brand new multi-year marketing relationship. So short-term, dramatic, in some cases unfortunately, traumatic, but in the long run, we still see opportunity for us, for our company and for our clients.

How have you seen COVID-19 impacting the legal profession and what have you found to be most surprising?

A lot of what we've seen this year reminds me of the retraction that was made after the housing bubble collapsed in 2008 and 2009. A lot of uncertainty, a lot of litigation on hold, a lot of clients looking to conserve capital, and essentially, like any human nature, pause during times of uncertainty to see what the landscape and the future looks like.

But litigation, in my experience, doesn't go away. It can become delayed, it can become reprioritized, but it's only delayed. And so in 2008, 2009, we saw a dramatic decrease in work. And then in 2010, we saw literally twice as much work as we normally would have expected.

We're hearing from our clients already that they are expecting similar waves of litigation to come forward once either COVID-19 is dealt with, or people deal with it. Two different outcomes, similar results.

Some of the things that I found most surprising though, is things that were never considered possible through the legal process are not only considered possible, they're happening. Remote hearings, remote depositions, remote trials, remote notarization, remote document review. Some of these things were considered so essential that they happen in person or in controlled environments that people resisted vehemently the idea that they could be done differently. And now we are doing them differently and finding that we can work around the security concerns, the data privacy concerns, the technology concerns, and we can in fact, adopt and adapt and move forward. It's been surprising. And encouraging.

The last time you and I spoke, we were at a big legal technology conference and we were discussing how now more than ever, all the facts are being recorded, whether it's Zoom, Echo style devices, conferences, and other events. Now more than ever with most people working remotely, replacing office settings, how can clients manage the risks associated with all of this data and especially with the personal devices that people have been encouraged to use.

That's a short question with a couple of layers to it. Number one, in terms of managing devices and the disbursement of information, strong mobile device policies, IT security policies around home WIFI, VPN, how companies are managing centralized sources, how they're offering resources to their employees, all of these impact the security posture of a given company.

We've been brought in to several companies to help harden their distributed network and their distributed network security posture. We've also been brought in to evaluate supply chain for outside counsel who are supplying legal services to in-house counsel. In those situations, we have processes in place to evaluate them, identify weaknesses, and strengthen them. It's actually not that difficult or that expensive or that time consuming to make those resources significantly stronger.

At the same time, what working remote has done is taken work that might've been done in person, might've been done on the desktop, and certainly accelerated the adoption of diversified teaming solutions. You mentioned Zoom, Microsoft Teams is another, we're doing a lot more SharePoint these days. We see a lot greater adoption and usage on a variety of ways for O365. There's a variety of other tools out there as well that companies are adopting to enable remote workers. Those also create data trails. On one hand, you want to make sure that your solutions are secure. But on the other hand, at the end of the day, my clients at least, have a firm belief that they can secure the data related to how they're interacting with each other. Now they're looking for ways that the data that's being generated can help them apply compliance solutions and compliance monitoring over what employees are actually doing.

How effective are my employees when I can't see them, but I can see the results of their work? How effective are people on Zoom calls? How often are they dropping off? What's the optimal duration for a Zoom conference call? Are people multitasking? Do I want them to multitask? These are new employee efficiency questions that we can answer through the data we're generating because of this new batch of tools that we're using.

So on the risk side, the risk is really data loss, but on the opportunity side, it's leveraging that information to really get insights in your business. From a data science perspective, it's an exciting opportunity to really bring value to the enterprise.

What have you seen change in the profession and practice since the changes to the rules about proportionality in 2015? And how have the California privacy rules and GDPR changed these issues?

People are still dealing with the outcome of proportionality rule changes, and the rules committee themselves made the comment at the time, and I believe it was correct, "This is not a significant change in wording. It's a significant change in focus." And I think that change in focus was appropriate because we were and our continuing to see, and I think the right word is avalanche, in data and data opportunities as well as obligations that can be promising, but also extremely expensive. So proportionality should be part of the conversation.

I'm involved in multiple think tanks right now working on white papers around proportionality. How to interpret it? How to create best practices? How to create tools to evaluate proportionality? How to educate practitioners and the bench on the implications of proportionality? And also how it's beginning to shift as more and more parties realize that discovery is no longer asymmetric, it's bilateral. Everybody has data these days. And sometimes just acknowledging that everyone has data obligations has done more for increasing the conversations at the meet and confer level around proportionality than any rule-making from the top.

At the same time as that's been moving forward we also see some of the emergence of new datasets have allowed proportionality, or efficiency, which is even better than proportionality, to rise to the front. And we're finding that we can evaluate the facts and circumstances of a given investigation faster with transactional contextual data than we could through what is still a fairly expensive process of document review. So we have new tools available to us, that have different cost and benefit equations and cost and benefit curves, which leads to different outcomes in proportionality.

Now as for the California privacy rules, the CCPA and GDPR in Europe, they don't really listen to proportionality. These are, in my book, these are really micro litigation circumstances where one single employee has been granted data privacy rights that they were enforcing, and that's what the law allows them to do and they should do that, but that enforcement is still brand new for many companies and the mechanisms aren't in place to allow that level of scrutiny on that small of a scale on an economic basis. So it's very disruptive right now to companies. It's very expensive. It's very chaotic. I think we're going to work our way through that over the next 18 to 24 months and find or adapt or create tools to make compliance with these demands and these requests much faster, much more efficient, much more part of the systematic business processes. But we're not there today. So I would say that those are two areas of dramatic non-proportionality, and that's what we're working hard to fix.

For legal professionals or other executives that want to increase their technical competency, what are some resources you might recommend to them for them to really be able to understand and educate themselves better about how all of this works?

I think the first thing to do is to accept that we now live 100 percent in a digital world. And until one becomes comfortable with the fact that we have these data sources, these data tools, these data collections, it's a limiting factor on the types of solutions that are available for any of our problems, whether it's compliance, litigation, or investigations. Once one accepts the fact that we live in a digital world, the next, I think, acceptance is most companies not only are dealing with data today, most companies will become some form of a data company in the future. And that includes law firms and their clients.

And so our careers, our roles and responsibilities, are subtly shifting, or not so subtly depending on your vantage point, toward data science. And so once you've made that transition, there are a lot of great materials out there for reading about data science, for beginners, understanding changes in the legal profession. I follow the publications like CCBJ, these types of podcasts. I listen to all the others, people that you interview. You've done some great interviews. You've got some great thought leaders. This is a resource where I turn to understand what's going on and how to be a part of that change rather than merely a spectator.

If you had one piece of advice to give to in-house legal professionals, what would that be?

Embrace the data. We're finding that we can resolve disputes and resolve investigations faster than ever by leveraging the data that already exists. Data essentially is created through human actions. And so it is a shadow. It's a record, it's a fossilized record of what was done. And since 99 percent of most disputes in litigations really resolve around factual issues, we can now answer those factual questions, and resolve those factual issues, better than we ever could before if we use the tools and the opportunities in front of us. Embrace the data and that will allow you to move forward and get back to the business of business.

Is there anything you'd like to add?

I would just hope that everyone who's out in the audience today themselves are doing as best as can possibly be imagined through these troubling and challenging times. We've been fortunate and I said that our industry has been somewhat resilient, and we've been able to avoid any negative adverse effects to our employees, and we've not been aware of any of our clients or our close business partners who've been directly impacted, but I know of families that have been. And so my heart goes out to everyone out there until we get through this COVID-19 crisis together. And in the meantime, best wishes and best luck to everyone.

To listen to Mr. Regard's podcast, click here.

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