According to Morgan Lewis & Bockius partner Stephanie Blair, labour arbitrage offered by LPO is only part of the equation that helps clients to draw value from the process; the labour element must be backed by strong searching technology for LPO relationships to be most effective. A cornerstone of the LPO business, e-discovery has become a crucial tool for assisting IP litigation.
Blair says the labour component of LPO gets clients only 'part of the way there' in terms of fulfilling their cost objectives. In a recent interview with website ESIBytes, she said: 'The problem with electronic discovery particularly in this environment where we're looking to reduce costs is [one] of volume. Even if you're paying substantially less per hour for attorneys to review documents, if you're still looking at terabytes of documents, you're still going to sustain a significant cost.'
The e-discovery arena has seen a spate of cutting-edge tools, including concept-based search-and-review techniques, along with other retrieval methods such as clustering, in which documents are construed as related if they contain groups of matching keywords. 'I'm optimistic,' Blair added, 'that some of the new technologies, the new approaches that go to the heart of the problem of volume are really going to have an impact on cost.'
Field Fisher Waterhouse partner Simon Briskman told IP Review Online: 'I agree that labour cost arbitrage is not going to be a simple issue, but you want your LPOs to be run by highly-skilled people. If LPOs can get themselves into a place where they have skilled lawyers in charge of technical operations, results will improve. Technology such as document-tagging, which cuts down on the time it takes to retrieve files, is always going to have core benefits to IP litigation work where, historically, a lot of information has been kept on paper. As the volume increases, the whole experience becomes a monumental paper-handling exercise, and retrieving a document on a paper file can often involve sending someone into a room to look for it. Technologies such as scanning and paper-tagging are becoming the backbone to making that system more efficient.'
Briskman's colleague Andrew Dodd partner in Field Fisher Waterhouse's IP and Technology Dispute Resolution Group thinks that the future of e-discovery will be based on 'establishing proportionality, especially when you're dealing with two or three servers stacked with unclassified documents'. Speaking to IP Review Online, Dodd said that more sophisticated search engines 'will lead to a more proportional reading of materials in court'. However, he added, technology is only as good as the person interpreting it. 'Ultimately, no matter what system you use, it still needs a brain to engage [with it] and a court to decide what is relevant. You really need to have a mental imprint on these search criteria.'
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