When Kelly Friedman began her legal career, it was not unusual to find herself surrounded by bankers boxes full of documents.
"When I started as a litigator, telling a client to 'send me your documents' meant they'd send you a file folder, 10 bankers boxes, 30 bankers boxes, or more, depending on the size of the file," she recalls.
A lot has changed since then – with lawyers going from sifting through thousands and thousands of papers in dozens of boxes to, in pre-COVID-19 times, conducting large document reviews using their laptops, discussing their findings together in a boardroom.
Friedman is a former litigator and Canadian eDiscovery pioneer. Today she is the national leader of BLG's Beyond eDiscovery, a top-notch team available to assist with your eDiscovery needs whether large or small. Since joining BLG in 2018, she has helped to establish it as one of the leading eDiscovery firms in Canada.
Friedman's journey into eDiscovery began 20 years ago, when
she unexpectedly found herself with some free time. "I had
blocked off my schedule for a three-month trial. The day before the
trial, it settled, and I had a huge gap in my schedule. That's
when I started learning more about eDiscovery.
"During that time, I spotted an eDiscovery conference I wanted
to attend in the United States. After attending, I got involved
with Sedona Canada, which is a working group that deals with best
practices and principles for eDiscovery in Canada. By the time I
had my first big eDiscovery project, I was already kind of a
theoretical expert. I didn't have practical experience, but I
had been researching eDiscovery and learning about it for
years."
At the time of the first U.S. conference Friedman attended, she says eDiscovery was not really part of the Canadian legal landscape. To learn anything about emerging electronic evidence issues one had to look to the United States. It was Friedman, along with a group of lawyers and other professionals also involved with Sedona Canada, as well as with the Ontario E-Discovery Implementation Committee (now known as the Digital Evidence and eDiscovery Committee), who pushed for the creation of eDiscovery rules in the country.
"At each firm I worked at over my litigation career, my
partners knew to come to me when they had electronic document
nightmares – that's how most litigators thought of them.
The litigators just did not want to deal with the novel problems
associated with electronic information, so I was the go-to to deal
with all document issues."
Outside the firms she worked at, though, the adoption of eDiscovery
best practices and procedures was slow to non-existent. That all
changed relatively quickly at the beginning of 2010, when the
Ontario Rules of Civil Procedure were amended to incorporate the
Sedona Canada Principles by reference.
"The Rules now said that if you did not comply with Sedona Canada Principles, in particular to discuss eDiscovery matters with opposing counsel and set up an agreement for how to handle eDiscovery, you were not going to get relief if you requested it from the courts," says Friedman.
"This incorporation of eDiscovery best practices into the
rules of court, as well as court-issued practice directions,
started happening throughout the country. The various courts and
rule-making bodies started recognizing that they needed to put
principles or rules out there for litigators to follow. It became
obvious that eDiscovery couldn't be ignored
anymore."
In little more than a decade since the change to the Ontario rules,
the growth of eDiscovery has been "rapid and extreme," in
terms of electronic document volumes, best practices adoption and
technological advancements.
"In the early 2000s, we started to realize there was
electronic information that we had to capture. In addition to paper
documents, we ... had to get forensic experts to take data off
cellphones and desktop computers, for example. Fast forward to
today and forensic collection has advanced tremendously. Throughout
the pandemic, remote collection has improved so much that we no
longer need to send a forensic expert to the client or send the
actual phone or laptop to the forensic expert – they can do
everything remotely."
According to Friedman, the growing use of artificial intelligence has led to a lot more data that needs analyzing. But, AI has also made it possible efficiently analyze large volumes of data.
"The platforms we use to read, analyze and organize evidence have come leaps and bounds. In the early days, we used to turn electronic documents into pictures so that we could flip from one document to the next in a viewer.
"Today, the tools are full of artificial intelligence. Let's say we have to investigate a whistleblower complaint about a procurement manager alleged to be receiving kickbacks. We first need to collect all communications for this individual – such as text messages, emails, MS Teams conversations – and then analyze it.
"What do I do with all this data? I start with the basics, such as a keyword like "kickback." While it is unlikely someone receiving kickbacks would use the term "kickback" in their correspondence, we have functionality called keyword expansion. What that does is allows you to enter the word "kickback" and get back words found in your actual data set that are conceptually similar – such as compensation, gift, graft, gratuity, and so on.
"I could also use conceptual analytics by entering the phrase 'someone is receiving compensation in return for providing preferential treatment.' The system will then try to find similar concepts showing up in the document set. This is really advanced."
Much of these AI capabilities and data analysis possibilities
come from BLG's use of the cloud-based eDiscovery platform RelativityOne.
"eDiscovery is becoming more and more important,"
Friedman says. "Technology has taken over our lives. That
means we're going to find the facts for cases in electronic
information, and we have to learn how to best gather, transform and
analyze it."
As far as eDiscovery has come, one area where it continues to lag is with pricing – specifically the lack of predictability. This makes it frustrating for clients, as they can't accurately budget for eDiscovery work. Beyond eDiscovery aims to change that with the January 2022 launch of a new pricing model.
"I've developed a pricing model that has a large fixed component, as well as a variable component based on data volume," Friedman explains.
"Under the Beyond eDiscovery 'all-in' model, a client will fit into a certain tier, depending on the volume of client data. That tier will tell you what the flat rate is going to be and what the monthly per gig rate is going to be. That allows clients to know what their eDiscovery project will cost over the course of a year. We may not know how long the matter is going to last or how much data opposing counsel will give us, but with the Beyond eDiscovery model there are fewer variables to estimate, and we can get a clear picture of eDiscovery costs for the life of the matter."
Friedman and the Beyond eDiscovery team will bring even more value to clients via a new relationship with global forensic specialist FTI Consulting.
"(With this relationship) we're telling clients that we can take expert care of their data collection, which is a crucial step in any eDiscovery project. We have vetted FTI, and we will work closely with their team on an ongoing basis to constantly streamline and improve quality of the service. It's the next best thing to having complete control over our own forensic lab and forensic business."
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