Michael Jeffrey Glick has spent over 25 years improving and implementing effective discovery solutions. A pioneer of e-discovery, Glick brings his knowledge of the legal process and principles together with his understanding of technology, enabling him to consistently help UBIC’s clients adopt the most-effective technologies and optimize their legal project management systems. His remarks have been edited for length and style.
MCC: To start, please share some background about yourself with our readers.
Glick: I’ve been supporting lawyers in their discovery practice for the past 27 years. I’m a lawyer myself, licensed in California and admitted in state and federal courts. For the past five years my role has been more as a senior mentor and business leader, developing what I believe to be the next evolutionary step in discovery, called Managed Services. I went to Loyola Law School, Los Angeles, and did my undergrad at the University of California, San Diego.
MCC: What do you see as the biggest changes in recent years in e-discovery?
Glick: When I started, discovery was exclusively paper. When email first started to emerge, the lawyers first request was “Can you print them?” The paper haystacks grew increasingly larger, and that’s when e-discovery really emerged.
With electronic documents, there’s a wealth of information – the metadata – which you don’t see on the surface, such as date sent, file size, document type, etc. You see a printed page, and it has content. It imparts a message, but then there’s information about who created the message, how long they worked on it, when they created it, when they started it, when they finished it, when they changed it, what changes they made, a lot of things that are happening under the surface that the computer keeps track of. And there’s a lot of it. Finding it is the key. That’s what discovery is: In essence, it’s about finding the needles in the haystack.
People don’t pick up the phone now and call each other. They email, and they document everything they’re doing, and everything they’re saying. People say things in emails that they wouldn’t even say on the phone. This has created an environment that’s just ripe for discovery. So technology has been the biggest change agent. But it has created a burden, which has required new technology to solve.
MCC: Has the judicial system kept up with the evolution of e-discovery?
Glick: The federal courts have kept up with it, and there are a number of leading members of the federal judiciary helping to shape the national discussion about it. Groups like the Sedona Conference, of which I’m a member, play a big role in helping to educate attorneys on what’s appropriate, what best practices are and so forth.
At public speaking engagements, I often tell lawyers, e-discovery is just discovery, with the same principles that have applied since old England. It’s just that you have to take certain precautions with electronic evidence that weren’t as important with paper-borne evidence because electronic evidence is so easily mutable. Things can be inadvertently destroyed. And the fundamental change is that evidence isn’t being created on paper anymore – it’s all electronic.
As the evidentiary haystacks have grown ever larger, we’ve had to devise better methods of effectively minimizing them so that we can focus on the relevant needles. The workflows have improved over time, and we’ve harnessed some amazing and powerful technology that we apply to achieve much more focused discovery.
In the old days, we were just vendors, but that has changed. We’re seen as partners in the discovery process. A number of providers, like UBIC, have distinguished themselves by bringing subject matter expertise in-house. We have lawyers on our staff who have been in the trenches, with real practice experience working with large, complex cases and applying these cutting-edge technologies and tools.
The technology is changing so fast that it can be very challenging for lawyers to keep up with it. I refer to us as the Sherpas; we help guide our clients through the mountain passes to the summit, keeping them from falling off a cliff.
The Federal Rules of Civil Procedure (FRCP) were amended in 2006 in recognition of the special considerations that e-discovery requires. Essentially the first changes acknowledged the fragile nature of electronic evidence, and the amended rules created procedures for early disclosure, preservation and production of electronically stored information. A lot of lawyers buried their heads in the sand. I’ve had lawyers, good lawyers, tell me, “You know, I handle e-discovery by stipulating with my opponent that we’re going to stick to paper.”
That time has long since passed.
The Federal Rules were amended again, taking effect last December. One of the key principles in the new changes is proportionality, intending that discovery costs remain proportional to the amount in controversy. It doesn’t make sense to spend a million dollars on discovery for a case that’s worth $250,000. It’s not really fair to a defendant to force them to pay huge amounts of money to defend a principle that they may be right on, when the costs of defending it are so high because there’s so much evidence that they have to produce. There are ways of balancing the scales in pursuit of Rule 1; the just, speedy and inexpensive determination of every action and proceeding.
Then there’s another area where the “gotcha” of inadvertent deletion of documents comes into play. Quite frankly, there is a right way to do it, and people really should be doing it the right way. Can you expect, however, that everybody’s going to do things by the book, especially in the periods of stress that generally accompany events that are going to lead to litigation? Should they be categorically penalized with severe sanctions? I think the new rules tone down the sanctions and create more of an environment where, if sanctions are going to be applied, it will be for intentional bad acts rather than through unintentional consequences from ignorance or carelessness.
The evolution that has taken place in e-discovery has basically created highly effective technology to help us cut through the haystacks and efficiently find the needles. The tools are, however, generally too expensive for most corporations to bring in-house. And the technology is changing so rapidly that even if investment in these tools were feasible, they’d likely become obsolete before they returned any savings on the investment.
Our Managed Services Partnership is a way of providing these powerful tools by leveraging UBIC’s tremendous economies of scale. We’re able to provide gold standard tools for corporations to use as if they were their own. We’re basically telling our clients that you can put your data into these SaaS based tools in our highly secure cloud. Use them as if they were your own in-house tools, and your internal legal department or outside counsel can do as much work in them as you want. And we’ll take care of all the back-end maintenance, backups, patches, etc. We’ll maintain all of the machinery. If you need help, if you need extra hands, we are integrated within the umbrella solution to provide it for you. In essence, rather than a steep investment, our Managed Services Partners get all the pleasure and none of the pain, at a cost that’s both reasonable and predictable.
MCC: Tell our readers how you and your colleagues at UBIC work with corporate legal departments.
Glick: With Managed Services we’re changing the paradigm. Rather than single-matter engagements, we partner for a period of years. We learn our clients’ preferences. We get to be really good at working with their people over and over again, and since we’re working on a long-term basis, we know how much of each resource they’re going to need, and we can plan effectively to make sure that we have them available on our end when clients need them. Rather than à la carte billing, we can provide a flat rate plan, and that provides the thing that corporate departments need most of all – cost predictability.
MCC: What does the typical team at UBIC look like, and how does it work for the client?
Glick: Our team is the best part of the package. Managed Services is the ultimate bundle, so we customize the package to meet the particular needs of the corporation. And naturally that requires regular interaction between our team and theirs. We have honed an onboarding and implementation process to define the clients’ needs and our role in their process.
We recognize that corporations differ widely in their philosophy and caseloads. And so we roll up our sleeves and design protocols that fulfill the department’s daily and long-term requirements. We also create connections with their lead outside counsel to ensure that the entire process works for all of the stakeholders.
Part of our process addresses the migration of existing evidence and methods of helping our clients leverage prior work product for downstream cost savings. Another component is assembling a playbook of specifications and workflows so that roles are defined; we know what they need and how to provide it in a very substantive way.
Then, of course, we build out their system, test it, train them on using the tools and begin helping
the legal departments to become more efficient, more effective, and form the long-lasting bonds of a
true partnership.
We provide a robust tool set, which includes a great database that helps them find what they need. We include an informative and interactive TRUST dashboard so they can effectively monitor their usage across all their cases. They can dig in granularly to several cases, maybe similar cases, or even a single case if they want to find out what’s going on with it, what their costs are looking like and where they’re spending their time. And ultimately we show them how the expense is distributed. Overlaying all of that is a dedicated team of skilled legal project managers and subject matter experts, led by a single point of contact ready to provide hand’s-on service whenever extra hands are needed.
We find that typically, our Managed Services Partnership results in direct cost savings of between 20 and 30 percent with indirect cost savings derived from leveraging prior work product pushing overall savings even higher.
MCC: Are the corporate legal departments you work with large or mid-market?
Glick: Both. We are honored to have some extremely large corporations that we work with, as well as some corporate legal departments staffed by only a handful of lawyers and everything in between.
One of the big advantages of Managed Services, particularly for corporations that fall victim to what we call pattern litigation, is the ability to use and reuse documents. Examples would include automobile rollover or some pharmaceutical cases – basic product liability stuff – where the same discovery documents are going to be used in each case.
Working in a Managed Services environment, we utilize our “discovery recycling tool,” which enables us to use and reuse the documents, retaining the work product from case to case. That helps prevent repetitive privilege reviews of the same documents, helps new counsel get up to speed faster and is very effective at controlling litigation costs.
MCC: What are the most common problems or situations that lead a corporate legal department to your door? Are they just overwhelmed?
Glick: Sometimes that’s the case, and sometimes it’s prior experience working with UBIC that makes them want to enlarge their relationship. They see the value, and they want more of it.
A lot of corporations want to
be more self-sufficient, so they’re looking to develop more in-house technological capability, and they’re looking at Managed Services as a way to do that. Once they realize the cost of implementing and maintaining their own discovery infrastructure, they look at our plan and recognize it as another good strategic outsourcing choice. They control their processes. We provide the power of technology, expertise and the back-end support.
MCC: Fast-forward 10 years, what does your field look like?
Glick: I think you’re going to see artificial intelligence playing a much larger role.
UBIC is a worldwide leader developing artificial intelligence. We use it in our e-discovery tools and have a product called Email Auditor that detects fraud, FRCP violations, employee dissatisfaction and other types of risks that corporations face while there’s still time to control the damage. It crawls the corporate net, identifies conceptual attributes, then alerts the executive team charged with risk avoidance.
It’s an active-learning type of a system. We’re applying artificial intelligence outside of legal in fields such as healthcare, finance and marketing.
We’re going to see artificial intelligence increasing for more proactive AI probing to help reduce risk, to help control or prevent some litigation, and to reduce the number of documents required in review scenarios by screening out irrelevant data automatically. There are technologies budding today that are going to be big and commonly accepted.
With semantic analysis, for example, we’re able to cluster groups of documents together that not only have similar concepts but the positive or negative sentiments expressed about those concepts. With that we will be able to look at a big data set and discover greater meaning and understanding about what the evidence means and how it matters in our cases.
There will need to be new tools developed to deal with the continual increase in data and data sources. The tools will get better and will provide more insight into the evidence sooner, driving better strategic decision-making. The practice of law will embrace big data principles and embrace technology as part of its normal process.
Technology will play a larger role, but I believe that people will continue to be the predominant element. Technology is necessary to sift through the ever-increasing haystacks to find the evidentiary needles. Managed Services is a means of providing that technology, coupled with the human service element, to make the costs affordable and predictable. But at the end of the day, the winning arguments are still going to be made by talented lawyers.
Michael Jeffrey Glick, Senior Vice President, Managed Services, at UBIC NA, in Los Angeles. [email protected]
Published March 31, 2016.
