Facts First, Facts Fast, Facts Found: Turning review on its head quickly cuts to the heart of the matter

Wednesday, September 28, 2016 - 16:14

Find Facts Fast is both the name and the mission of FTI Consulting’s innovative approach to document analysis. As David Grant explains below, it deploys researchers to unearth the most crucial materials from the outset, essentially flipping the process upside down to provide counsel with the vital information before a full-bore review has even begun. His remarks have been edited for length and style.

MCC: What is Find Facts Fast?

Grant: It’s a research process that we’ve designed to very quickly understand the significant facts and key documents for a particular matter without waiting for the standard e-discovery review process to unearth those documents and facts. This enables early information for informed witness interviews, early assessment of whether a case should be settled, and control of the facts from the beginning.

MCC: How does that differ from a typical document review?

Grant: Really the goals are completely different and we often run two teams in parallel – a small team focused on the key documents and a much larger team focused on review and discovery compliance. Find Facts Fast research is a small team focused on quickly surfacing the key documents and the key facts, whereas a standard review process is designed to make sure that all of the responsive documents are found and looked at prior to production. Typically, that includes running some sort of culling process, such as key words or predictive coding, then reviewing all of the documents that result from that culling process. Many of those are nonresponsive and don’t need to be looked at, and a tiny fraction of those are actually key documents. Legal teams produce all of the documents that are relevant or responsive, regardless of whether or not they really matter for the case. An overwhelming proportion of resources are being spent on documents that don’t make a difference to the outcome of the case, just to make sure that all of the responsive material is produced. With Find Facts Fast, the goal is not to find all relevant, responsive material. The goal is not to review all of the documents, even though most are nonresponsive. The goal is for a smart researcher to quickly figure out what the key facts and the key documents are, so that somebody has control of the case and is able to understand the substance of it very quickly.

MCC: What was the genesis of Find Facts Fast and why did FTI create this offering?

Grant: It’s a reaction to the distinction that I was just talking about. We’re focused on turning the standard approach around and spending early time on the documents that have the most value to the client and counsel, which are the documents that actually make a difference for disposing of a case. While we still have an obligation to make sure that all of the responsive documents are produced, a lot of time and money is spent on documents that don’t make any difference to the overall disposition of the case. The goal is to quickly get to the substance of the case and the information that is most valuable first, so the production compliance process becomes essentially about doing it cost-effectively. All of the information that counsel needs to deal with the matter substantively – the most important aspects of the matter – have already been uncovered. The Find Facts Fast research process is essentially our effort to turn the standard approach upside down and make sure that the focus is first on where the value of a case lies.

MCC: To what kinds of matters is Find Facts Fast ideally suited?

Grant: There are very few matters in which the key documents and facts don’t matter. For instance, in standard litigation you need to know what those facts and documents are to know how to handle the litigation and how to proceed – whether to settle, whether to dispose of it, whether to take an aggressive stance. The same is true for internal investigations where the point is to quickly know what the key documents are. The same is true for regulatory investigations where it is most important to quickly understand the key facts and work with the regulator.

Probably the only matter not benefiting from Find Facts Fast would be cases where the facts are not really of concern. There might be certain instances in which you have to comply with discovery obligations but the only questions that matter are questions of law, or there might be certain regulatory matters where you have to comply with the process quickly but you don’t anticipate that a particular set of facts is going to make a big difference.

For instance, in certain merger investigations (“Second Requests”), compliance at speed is the most urgent issue, to trigger the waiting period. Even in those matters, however, Find Facts Fast can be valuable later in the process, such as during white paper, deposition or trial preparation, as a way to find the key documents that are going to be used without reviewing all of the documents before the deposition for that particular custodian. So even in the rare case where the facts aren’t the most important upfront, clients have found that this technique is valuable for the later phases of the matter.

MCC: Why hasn’t this approach been taken before?

Grant: The technology has advanced to a point that enables this approach. In the paper days, the only way to find key documents was to go through boxes of papers and put eyes on everything to find the key documents. That paradigm, almost accidentally, stayed in place when we started dealing with electronic documents. People just assumed the best way to find the key documents was to continue reviewing everything (after culling) until you came across them.

Technology now enables data mining, which allows large sets of documents to be automatically summarized in groups, both at a high level and at a document level. The key themes in those large sets of documents, or in individual documents, get extracted and presented to a researcher. That means that researchers are now able to use those summaries to find the key documents, and they have good reason to exclude the documents with summaries that make clear they are obviously irrelevant. That type of data utilization and data mining is a relatively new technique, so in some ways its development has enabled thinking about how the documents interact with the substantive merits of a case that wasn’t available before.

MCC: Can Find Facts Fast be employed with any analytics tool?

Grant: Generally not. If you think of the standard review process as looking at a large number of documents to separate a few responsive ones from the majority that are nonresponsive, Find Facts Fast researchers are flipping it upside down. For a good researcher, using the technology means finding a reason not to look at almost all documents, because they obviously are not key. The trick lies in being able to lay actual eyes on a fraction of the total document population while still understanding the entire population so you know that you aren’t missing any pockets of key documents that matter.

The researcher has to be able to understand enough about the documents – the content of the documents – to have confidence in ignoring the overwhelming majority of them. Since it’s the content that generally makes a document key, the researcher needs a high-level summary and a document-level summary. The researcher needs to have a birds-eye view of, say, 100,000 documents and see what the themes or key topics are. They might see 2,000 documents that are about issue X and 2,000 documents that are about issue Y and realize they only need to consider looking at the 2,000 documents that are about issue Y. Of course, it’s not enough to just winnow down to those 2,000 documents and then review them all. The goal is to look only at documents that stand a chance at being important. So researchers need to be able to take those 2,000 documents, see summaries of the individual documents, and use those individual summaries to look at an even smaller fraction of the documents to figure out what the key information is. Using the technology’s summary of themes lets researchers quickly hone in only on the likely key documents.

To effectively follow this research process, you need analytics that enable you to summarize large sets of documents at a high level, and then zoom in and understand individual documents without an eyes-on review so that you can figure out which are worth paying attention to. You need that dual-level content summary visualization available to the researcher.

MCC: Who are the researchers, and how are they trained on a case?

Grant: Typically, researchers are professionals we have worked with for a while. They have demonstrated an aptitude for thinking outside the box and doing investigative work focused on the substance of a case. They are often attorneys, although certain clients don’t require them to be attorneys. The focus is on their investigative skills and their ability to think creatively about how to find key information. Often even excellent standard reviewers don’t make good researchers because the paradigm is so different – for review the goal is to look at every single document, and for researchers the goal is the opposite – to quickly find the key information without looking at every single document.

The most important part of the process is understanding what truly matters for the case. Our researchers spend a lot of time with outside counsel, and sometimes inside counsel, getting a detailed briefing and understanding of the particular case issues and what constitute the key issues. Then as the researchers are going through the research process, on a very frequent basis, typically at least daily, the researchers discuss any key information that they found with counsel and confirm whether or not they’re finding the right information. Basically, they get steering on whether or not they understand the issues correctly. In a short period of time, the researchers build a great understanding of exactly what the issues are in a case from counsel directly and are able to act on behalf of counsel in finding the key issues.

MCC: Is Find Facts Fast applicable only to in-house counsel?

Grant: Not at all. Find Facts Fast research is about the substantive understanding of a case. It’s about understanding the crucial documents and key issues so that a case can be dealt with most effectively. That is, of course, a concern for in-house counsel, with respect to how to dispose of a case and what risks a case presents for the company’s portfolio, but it’s also of fundamental concern to outside counsel, who are concerned with getting the right result on a case and with the substantive disposition of a case for the client.

MCC: Can you share any case studies in which when Find Facts Fast helped clients?

Grant: One example is an investigation that we were doing for a client involving a regulatory agency that was interested in a particular set of facts. In this case, we had to go through a standard review process because the regulator required us to dot the i’s and cross the t’s, but at the very beginning of the case, we set up a couple of researchers on a Find Facts Fast process. They were able to very quickly surface all of the vital issues and key documents. This had two impacts. First, the client was able to quickly discuss the issues they found with the regulator and have confidence in that discussion. Second, outside counsel was able to very effectively conduct interviews with the employees at the company because they were armed with all of the information going into the interview, instead of just doing some initial, broad, fact-finding work.

Another example is a commercial litigation matter involving two large companies and, due to the volume of data, a major discovery effort. The standard review and compliance process took a large number of people and a large amount of time. Of course, you can’t avoid that because you have discovery obligations, but at the beginning of the process, the client was able to go through a Find Facts Fast process and quickly identify all of the key documents and understand what information was available. Also, given the posture of the case, they were able to produce a lot of those central documents early on, showing that they had made a good faith effort to find the relevant material.

Another standard litigation example is a matter that proceeded past document discovery to some very important depositions. The Find Facts Fast process was used later in the case as a way to quickly and efficiently prepare for the depositions. Just one or two researchers were able to identify the key fact documents without going through a “review everything” approach and figure out what documents were going to be important in the course of those depositions.

A final example involved using the process for inbound documents, when the other side, or a third party, was producing material to use. It’s not very cost-efficient to go through a standard review process. We had a matter where outside counsel needed to understand what had been produced to them to be able to use those documents in substantive motions, like motions for dismissal. With a small team of four people, we were able to isolate the key documents over the course of just a week or two. That enabled counsel to identify all of the needed information from a population of hundreds of thousands of documents that, in a standard review process, would have taken weeks and a large number of reviewers to get through.

 

David Grant is a senior managing director at FTI Consulting, based in New York City. He can be reached at david.grant@fticonsulting.com.

David Grant is a senior managing director at FTI Consulting, based in New York City. He can be reached at david.grant@fticonsulting.com.