Well-known for its software offerings, FTI Technology is also a major provider of managed review services worldwide. Kathryn L. Hardie and Sophie Ross explain the company’s expertise in negotiating the particularities of global jurisdictions and highlight how their well-trained, nimble team can be a secret weapon, especially when a high-speed, high-stakes response is required. Their remarks have been edited for length and style.
MCC: Many people know FTI Technology because of its Ringtail e-discovery software, but they may be surprised to learn that you are also one of the largest managed review providers in the industry. When did you start in managed review?
Ross: We started in managed review in 2010. It was a natural extension of our technology platform and e-discovery services. Review is often the most expensive and complex component for every project, and we saw a number of inefficiencies we could correct to improve results for our clients. Based upon this success, we have expanded review locations across the country – New York, Miami, San Francisco, L.A. – with our international locations in the UK and Asia. Both law firm and corporate clients use our managed review for all types of matters, from small to very large, global, multilingual, across various industries from financial services to pharmaceuticals to technology. It really runs the entire gamut.
We’ve been able to grow our work because, instead of addressing review as an afterthought, we look at the project holistically. From the onset, we discuss how we’re going to minimize what needs to be reviewed, keep the total cost where it needs to be, and ensure that the client gets access to the information as soon as possible to shape their case and comply on time. The earlier you think about the review, the better.
MCC: When companies and law firms are evaluating review providers, what are the most common questions they ask?
Hardie: The first thing most law firms and corporations ask is, “What makes you different?” We emphasize our ability to use best-of-breed software in combination with our workflows to increase efficiency and drive overall cost reduction. To Sophie’s point, many of our clients are global corporations or law firms. They’re looking for an organization with a similar global footprint, and they’re also looking for specialized expertise in foreign-language review, which is one of our particular sweet spots.
MCC: For global clients, why is it important to ask managed-review providers about their processes for EU and Asia data?
Ross: Companies today operate in the global environment. Data resides in the cloud, on personal devices, and in different places, and companies have to be able to handle the entirety of the data as part of cases. Even if your case is mostly in the U.S., if you are a global company or have some international work, then most likely a component of your project will have data outside the U.S., potentially in the EU, Asia, or elsewhere.
To handle data in other jurisdictions, you need to have a provider that understands the components in play. You have to understand the data privacy laws in each country. For example, in the U.S. data is basically owned by the company; in the EU, the individual; and in China, the government requires state secrets review. How you handle the data affects how you approach the review. Certain projects and environments allow you to review remotely; others require review in country and, in some cases, a closed review environment, so you need to have access to reviewers and review managers, and the ability to set that up in a secure environment.
The other piece is not duplicating review of information. You want to review the bulk of the data where it’s most economical. If you have a company that has, say, 80 percent of its data in the U.S. and 20 percent is foreign language and global, you can make sure that the unique documents in the U.S. are reviewed there. And if you can further reduce the population that’s reviewed abroad, you may end up with only 10 percent or fewer documents unique to those jurisdictions.
As Kathryn touched on, the foreign language component is also important. Managing foreign-language reviews requires different workflows. If you are going to apply an advanced approach to the review, such as use of analytics or predictive coding, the provider and the tool being used should have demonstrated use in those particular languages.
MCC: Is experience handling matters regarding the Foreign Corrupt Practices Act important?
Ross: Like handling data from international jurisdictions, with FCPA matters it first depends on the countries involved. What’s important with FCPA matters is for the client, outside counsel, and the corporation to know the details of the case as early as possible.
In a lot of FCPA matters, we offer a dual track of a typical review in parallel with an analytics-based review. With an analytics review, you put aside a small group of reviewers who look at the data in an investigative manner and pull out whether certain components are indeed an important part of the case. It allows outside counsel and the client to find out where they stand early on. Before you finish the entirety of the review, you can shape the approach with a particular case and in each country.
Also with FCPA matters, you need to put in place the right coding template so that the reviewers are able to code for relevancy and questions with clarity to enhance speed and accuracy.
MCC: Why should companies be particular about their managed-review provider for antitrust Second Requests?
Hardie: A Second Request is essentially a Department of Justice (DOJ) subpoena for additional market information to make a determination about whether companies can merge and not impact the economic balance in their particular areas of business. These subpoenas are very fast, their requirements are very specific, and the workflows around those requirements are very particular. Companies that succeed in this area have to be agile and nimble, and they have to have experience with the Federal Trade Commission (FTC) and the DOJ in advising outside counsel on how to negotiate with the agencies around usage of software.
In our instance, we rely heavily on our utilization of predictive coding; we were one of the first organizations to introduce this into the DOJ and FTC as part of the compliance for Second Requests. We’ve been active in conversations with those agencies on how the software operates and how it impacts the delivery of productions to the agencies. We are very close partners with the antitrust firms that we service, as well as the corporations that depend on us. In many instances, the inability to comply on time results in significant fines and a potentially damaged deal. A managed-review provider with significant Second Request experience can help drive the results in multibillion-dollar mergers.
MCC: The recurring theme in these scenarios is global expertise. Why is that such a challenge?
Ross: Typically with FCPA investigations, you touch data in several countries. Many Second Requests also have a component that potentially affects the EU or Canada. What’s difficult in those cases is you need to handle the data collection and housing of the data with the review tools, and provide secure access to the team. Security is even more important in some international locations for data privacy. Not many providers are able to provide that secure environment.
Hardie: I’ll add that there are very few providers that can offer multiple locations for data housing. We offer data centers in the UK, the U.S., and Australia to make sure that we keep data independent. We’ve had cases with overlapping investigations in which the maintenance of data in various jurisdictions was critical to the outcome. It’s not a common theme with service providers to have the flexibility to protect the data and provide global resources in review and management under one roof.
MCC: Does it matter which e-discovery software is used?
Hardie: When you talk about software, you need to think first about flexibility, feature functionality, and the ability to tackle a review from many angles. Speaking to FTI’s product Ringtail, it offers predictive coding, to reduce the amount of data to ultimately be reviewed in a substantive fashion, and several visual interfaces, to see our data on a much larger scale and identify critical documents more quickly.
While of course the software does matter, it is the people who deliver that software who ultimately matter. And in particular with FTI, our core as a consulting organization and our true desire to deliver the best results to our clients play into our delivery team, who are highly skilled, nimble, flexible, and, most of all, incredibly creative around problem-solving. Wrapped around our software, that is one of our greatest assets at FTI.
MCC: Keeping on the human component, the quality of the review attorneys has to be a big differentiator. What does FTI Technology do differently?
Ross: When you manage reviews, you want access to high-quality reviewers, so you need to already have experience and databases of trained reviewers, and that’s not always easy to find. Typically you need to turn that around very quickly – it’s not as if you’re going to have months and months to assemble a team. Within a week to 10 days you need to put in place 25, 50, 100-plus reviewers, so timing is very important, especially, as Kathryn mentioned, for Second Requests. We have a very tight selection process and a database of reviewers whom we work with from one project to the next, so they’re really well-trained.
We take the smartest, most efficient way to manage a review, not just bring in computers, hire reviewers, and attack. We step back, look at the project as a whole, at the particularities. We offer an approach that maximizes the technology, that allows the clients access to the best reviewers in the industry, reduces the cost as much as possible, and provides management of the budgets in a tight manner. We also work closely with outside counsel; it’s not as if FTI gets the documents and reviews them, and then outside counsel finds out what’s there. It’s an integrated, transparent process with collaboration along the way.
Kathryn L. Hardie, a senior managing director in the FTI Technology practice in Washington, D.C., specializes in e-discovery sales cross services and channel software distribution. She can be reached at firstname.lastname@example.org.
Sophie Ross, a senior managing director in the San Francisco office, serves on FTI Technology’s Steering Group and leads both the western region for FTI Technology as well its managed-review business. She can be reached at email@example.com.