eDiscovery Leaders Live: Clare Chalkley of Integreon
With the State Farm tagline “We know a thing or two because we’ve seen a thing or two” in mind, I asked Clare to start by telling me some of thing things she’s seen – and learned – during her time in the eDiscovery (or as they say in the UK, eDisclosure) industry. Clare discussed some of the changes that have taken place on her watch, in particular the transition from paper to electronic evidence. We talked about the emergence of eDiscovery from the back room to the front of the house, and how the changing dynamics that transition has brought about. We turned to the pandemic and its impact on discovery, particularly the rapid rise of remote review, and then focused on which changes appear likely to be here to stay. We also talked about the expanding borders of eDiscovery in to privacy and governance and touched on some of the ethical challenges that come with industry changes. We then closed with a simple admonishment from Clare: get involved.
Recorded live on June 11, 2021 | Transcription below
Note: This content has been edited and condensed for clarity.
Welcome to eDiscovery Leaders Live, hosted by ACEDS and sponsored by Reveal. I am George Socha, Senior Vice President of Brand Awareness at Reveal. Each Friday morning at 11 am Eastern, I host an episode of eDiscovery Leaders Live, where I get the chance to chat with luminaries in eDiscovery and related areas. Past episodes are available on the Reveal website; go to “revealdata.com”, select “Resources”, then select “eDiscovery Leaders Live”.
Our guest this week is Clare Chalkley, Vice President of Legal Services at Integreon. Clare has worked in the legal industry for almost 35 years, 25 of which were spent as Litigation Support Manager at the international law firm Clifford Chance. Clare led the eDiscovery and Case Management team, supporting lawyers and clients around the globe on litigation and arbitration matters, regulatory, internal and antitrust investigations and employment disputes. She is currently, as I said earlier, Vice President of Legal Services at Integreon, a leading ALSP, where she works as a subject matter expert for eDiscovery and managed document review. Claire also sits on the board of the UK Chapter of ACEDS. Claire, welcome. Happy to have you join us.
Thank you, George. Thank you, that was a very nice introduction as well. I just want to say as well, I think it’s great that Reveal and ACEDS are supporting these online events and keeping our community connected in these times. So, thanks to them too.
It's our pleasure, both on behalf of Reveal and on behalf of ACEDS.
Learning a Thing or Two in eDiscovery
So as I noted in the introduction, you've spent a year or two in this industry. And to quote an insurance company here in the states, State Farm Insurance, or paraphrase at least, “We know a thing or two, because we've seen a thing or two”. You've seen a thing or two over the years and there’s been a few changes. Tell me some of the things you're seen.
Well, first of all I’d start by saying that, it may be 30-plus years, but it certainly does not feel like that long. And I think it's testimony to the industry and the people in it and the pace of change and the pace of development and the pace of innovation, that it’s felt like a fresh job, a new challenge every single year.
I guess my tenure at Clifford Chance, I started there when I was sort of 23, 24. So I got the chance to learn the eDiscovery ropes in a very organic and natural way. Because when I started, I think one of the first jobs that I had was to make sure that there were computers on lawyers and partners desks. Because in those days, back in the early 90s, we didn't have email, we didn't have document management systems, and just to get lawyers to log in was the challenge. That was kind of my first role when I started at Clifford Chance, was to train lawyers how to log into their computers, whilst kind of moving away piles of papers to find my way to their keyboards because everything was paper based.
"You look at where we were then and where we are now with the complex data types that we’re handling and how spread out data is and how complex data is - there’s been a lot of changes."
Obviously, as we moved away from scanning and manually coding documents and putting them… We talked the other day about the systems that we had using Access databases and Paperbridge to view pictures, as we moved away from doing that to eDiscovery. You look at where we were then and where we are now with the complex data types that we’re handling and how spread out data is and how complex data is - there’s been a lot of changes.
Also, looking at the way, cyclically, eDiscovery has been managed in house by law firms, it's been outsourced to third party providers, it was brought in house again, and it was outsourced again, and then we've gone to cloud and we've gone to SaaS solutions. So, if I could write a book, I’d have written a book by now and made my millions or my thousands, or my hundreds or whatever. But maybe one day we'll sit down and write that book, and that could be the pension fund.
Normalizing the Use of eDiscovery Technology
For lawyers who are practicing in this area, as you said things have changed enormously and we're not looking at paper much, if at all, anymore. We're dealing with all these different forms of electronic files. What can they get out of this that they couldn't get out of the paper then?
Well, they say that technology has created the problem and technology is fixing the problem. So in what we used to have, if you think about it, go back to the EDRM, the identification and the collection. We would have to send teams of lawyers out to warehouses to look at boxes, to look at files inside of boxes and scrape mouse droppings and leaves and blow dust off files because that's how our client stored their data. And it was cumbersome and it was time consuming and it was expensive. You look at eDiscovery now and it can be cumbersome, it can be time consuming, and it can be expensive. What we have now is the opportunity to have a bird’s eye view of the data that we've collected. We can gain insights at very early stages. We don't have to read through hundreds and hundreds of lever arch files to find interesting documents. We can just zoom in on the interesting hot stuff straight away, using the technology and tools that we got available to us.
When the photocopy was invented, the duplicate was invented. So you know, we have amazing things like deduplication and date restrictive searches, and keyword searches, and all of the wonderful analytics tools and continuous active learning. And I think there are still some lawyers, and they certainly in my experience still exist, that like hard copy. They want to have the feel of paper in their hands, they want to get their highlighters out, they want to stick their color coded sticky tabs down the side. Barristers are the same as well, it's not just lawyers.
I think on the whole, and especially maybe over the past 14 months, with COVID and lock down and remote working, lawyers embrace it, they see the benefits of it. They may not always understand it, but that's what people like eDiscovery professionals are for, to hold hands and train and comfort. What was that amazing phrase that Rachel McAdams used? Kind of a normalized analytics and make it so it's not a mystery, it's not something difficult to be grappled with, it’s just there in the background, bolstering their efforts, kind of providing a safety net. And I think it puts them in a much stronger position and much better place, and it must make their lives more interesting as well. Right?
I never saw a lawyer’s eyes light up so quickly when you went from a dataset of, in those days, 10,000 documents to 3,000 documents by running a keyword search. That’s probably a longer rant than you anticipated….
Moving eDiscovery Out of the Back Room
No, that is fine. So one of the things then is, at least from the way you’re describing it, it sounds as if to a certain extent the operations, the functions and the use are moving out of the back room and more front and center. Is that right?
Completely. And I used to call it “back room wizardry” because a lawyer could give you a lever arch file and a couple of hours later it would be on their computer screen. It was, “Wow, how did that happen?” And for many years, when I was at Clifford Chance, the Litigation Support Department, as we were then, was a business support function. Whereas you look nowadays at the way that law firms are running their eDiscovery and their business is never right, they are profit centers.
So we have moved from the back office, we would be dealing with paper, like printroom and reprographics, to front and center, because…. I’m not going to go through all of the legal side of it, but how eDiscovery now is, you’ve got the disclosure pilot in the UK, for instance. A part of the disclosure pilot is that if you have a disclosure review meeting, that you need to have the right people in the room talking about the technology, explain the technology, making arguments about the technology, and those right people are the eDiscovery professionals because they’re the ones that understand the tools, they understand what they can do, they understand the analytics, they can explain and they have the vocabulary to do so.
So I do very much think it is front and center now, and the importance of data management and getting it right and the repercussions of the sanctions if you don't get it right, are quite scary. Like I said at the start, we learned when it was still kind of, we were feeling our way. Let's try this, let's see if this works. Let's try that, let’s see if that works. Whereas now, the expectation and the pressures are a lot greater because the data is bigger, the data is more complex. The timelines are tighter. We've got the regulatory pressures. You've got the privacy pressures. There is so much more to think about. Because you're collecting data from all over the world, from all of these different systems, and you have to have that understanding, as an eDiscovery professional, and the foresight to know that the decisions you make at this stage are going to have an impact in what happens further down the line, all the way through to production. Whether it's in a courtroom or whether it's to a regulator, or whether it's a report or even a notification list in a cyber review. So, yes, I certainly think, in my view, it’s front and center.
How has this change affected the dynamics between, on the one side of the lawyers and the barristers, and on the other side, the eDiscovery/eDisclosure professionals?
"...the lawyers see the benefit and the worth of eDiscovery professionals and the tools that they use, often getting people out of hole, which is always a good thing to have up your sleeve."
How has it affected the dynamics? I certainly think that there's probably a lot more respect for the profession. I think there's a respect for the understanding of the tools. I think it's enabled lawyers to be more efficient. It's enabled lawyers to get to the heart of the matter more quickly, having these tools and these individuals who understand and know how to manipulate and use the tools, making the lawyers look good in front of their clients, which is never a bad thing. And it's changed the dynamics for the better. I think the legal profession, the lawyers see the benefit and the worth of eDiscovery professionals and the tools that they use, often getting people out of hole, which is always a good thing to have up your sleeve.
Moving the Industry to a Better Place
Do you see a change as a result of the shift in the capabilities and the shift in respect, if you will, do you see a change in the outcomes of matters? Are we on the whole better off or worse off for having this content in electronic form available to us and that we can work with in these different ways?
As opposed to the old days of paper and lever arch files and the like.
As we said before, the volumes are greater, but the insights that the technology we use afford us are much better and we can get to the crux of the matter much more quickly. We can settle matters more quickly. We can get our arms around the issues in the case more quickly. If there is a red herring, be a good or bad one, we get to it more quickly. Now the smoking guns can be found. We can find all the documents that are like the smoking guns.
I think there's more opportunity to trip up. And when you end up having disclosure about disclosure, and the mountains of correspondence about disclosure because it is complex or because one side is using tools that the other side doesn't agree with or using processes that the other side doesn't agree with and the expense and the costs and the time is wasted arguing about the technology rather than the case, then that's not a great outcome. But if you can get to the crux of the matter quickly because you've had the tools and the know-how and the skills to find the nuggets, then that is a great thing. Whether it is a litigation or a regulatory investigation, or it's a cartel investigation and you’re in a race for leniency, and you're the ones that find those documents that are going to get your client off the hook, then brilliant. You couldn't do that with paper. So yeah, definitely in a better place.
How Did the Pandemic Change Things?
Prior to the onset of the pandemic, review was almost always done in a review room or something like that: Carefully controlled, physical setting, often with people not allowed to bring in their phones, often with cameras mounted on the walls to monitor what was happening in the rooms. And of course, with the onset of the pandemic, that had to stop. We had to adapt and shift and move to remote review. What's the status? First of all, how well has remote review worked as opposed to the traditional approach? And where do you think things will head with that moving forward?
Well, we had to adapt very, very quickly. And funnily enough, coincidentally in the beginning of last year we had a global meeting with all the business unit heads and the business development people and remote review came up as a subject for discussion. And talk about eating your words, I remember sitting at the table saying, “No, maybe our clients in the UK, they're not ready for remote review yet. We can’t go to our financial clients and our law firms and offer remote reviews because it'll never happen”. Fast forward six weeks and we set up all of our review teams in the UK, in India, in the Philippines, in the US, everybody was set to remote working. It didn't happen overnight, but it was a very, very quick process. Just as the panoramic started to escalate, we said, “Look, it's not safe to have people in the office. Let's get everybody working remotely”.
And obviously, we consulted closely with our clients. “Are you comfortable with this? Are you happy with this? These are the security measures that we have in place, physical security and technical security. Are you okay with this happening?” Now, obviously they were in the process themselves of moving to remote working and working from home.
So in the UK, all but one client and one review that we had said, “Yes, that's fine, we’re happy for this shift to take place”. And the only reason that one client didn't want to go remotely was because it was a very, very, very sensitive, highly confidential matter and we totally understood that, and they took that back themselves. So we had our teams sign an additional NDA, every one switched to working through a secure Citrix environment. And after the initial kind of shock of, “Oh we're not in the office anymore, how are we going to do this?”, it worked amazingly, amazingly, amazingly well. I mean everybody worked their socks off to get it up and running and sorted. But it was an incredible effort and it was a huge success.
I would say that obviously there were pros and cons, advantages and disadvantages. Everything that we do and so much of our business is driven by metrics. So in terms of productivity and output and accuracy of the reviews, people think people aren’t going to be working so hard and they’re not going to be doing this. You can log everything, whether it's through the online review platform or other platforms that you have. So we knew when people were working and when they weren't working. We could log productivity, we could log the accuracy, we could see the overturns from second level and QC reviews. So we had all the tools available to us online and also the collaborative tools, people talking via Teams and emails and everything like that, and the calls and the video chats, and we were still doing briefings with lawyers, but it was just on screen rather than actually in person. So it was business as usual, just in the manner that we have to do it now.
Advantages. There’s many advantages to it. People weren’t having to travel into the city, so there’s a cost savings from their perspective. They were safe, they were at home, they were doing what the government was telling us to do.
Access to talent that we didn't have access to before. If people didn't have to travel into the city, we weren't confined to using people in the London area. If we found somebody in Sheffield, for instance, that had a particular set of skills or a particular language skill, there was no difference to using somebody there than having somebody in London. So the access to talent, the talent pool got wider.
Flexibility where possible. It was project specific, but flexibility in what hours people worked. Which meant we were able to use people whose personal circumstances may be different. For instance, they had children, or school drop off and school pick up and things when the schools were open. So all of those people were now available to do review. And as I say, the productivity and the accuracy was fine, it was no different. So it didn't take long for it to be business as usual, it was just business as usual from your home study or your kitchen table or, you know, wherever.
Which Changes are Here to Stay?
Where is it going to go in the future? Again, I wish I had the crystal ball.
Well, let’s pretend we do.
Let’s pretend we do. I think with a lot of things, we all say there's going to be a hybrid approach. So we get the best of both worlds. If people want to work from home, they can. If people want to be in the office, perhaps you can make space available for people that want to come in, who for whatever reason prefer to be in that office environment. It's going to be another big learning curve when we do start to open up. In the UK, we're just being hit by another wave, we've got a new variant, so it's not going to be pushing people back into the office anytime soon.
But we would have to listen to our clients, what do our clients want? As yet, our clients haven't said, “We insist that you're back in the office”. In the UK, speaking from the UK perspective, they haven't said we want review teams back in the office yet. If that happens, then we will make that happen. You think about our clients themselves, the banks, the Big Four, the law firms, they’re reducing space, they’re reducing their office capacity, they’re working with a different model, three days at home, two days in the office or vice versa. So, the whole landscape is changing and we'll adapt and we'll serve our clients how they expect, or how they want to be served. So if that confidential, particularly sensitive matter does come in again, we can offer them that secure review space.
More Work in Data Privacy
I think you mentioned earlier that the tools and skills of eDiscovery can be used outside of the traditional boundaries of eDiscovery in for example, the cyber arena. And I think you all are doing some things on that front. Tell me a little bit about that?
We do. We were talking about the EDRM as a whole and how the profession has kind of wandered to the left, getting involved in data governance and data privacy and things like that. And it's wandered, spidered out from the right and the eDiscovery processes, the tools that we've got, the skill set that we have, it’s branching off into areas outside of the traditional disputes and investigations and litigation and things like that. You think about the use of what we do with M&A and due diligence reviews and also the cyber side of it as well.
We actually did an ACEDS event a couple months ago, and it was about the intersection of eDiscovery and cyber. And it was our best attended event for a long, long time, albeit remote and online, but it was our best attended event, so much so that we're doing a follow on for it.
But there is a big crossover with the skills for eDiscovery and once an incident has happened, a breach has happened and it's been identified, from there on in you think about what we do. Identifying data, identifying what is potentially being compromised, collecting data, pulling that data, processing it, doing your deduplication, doing your data mining to find documents that potentially contain personal information or commercially sensitive information. And then obviously, in order to prepare the notification list and be ready to talk to the regulators and to tell anybody whose data may have been compromised, you’ve got to review the data. And sometimes it's one mailbox and it's pretty contained, other times it is millions and millions of documents.
So we've been involved in hundreds of reviews of compromised breached data and working through to preparing the notification lists. And what's the review like? It's the same but different. It's sitting in front of the computer and it's looking at a document, but if you're looking at it with your litigation or your investigation head on, you're looking for a story, you're looking for who's the players here. Where’s the evidence that supports these issues. You’re very analytical in that way. You've got your lawyer head on, right? When you're reviewing documents, pulling out information for a data breach, is George Socha’s name in here? Oh, there’s George Socha’s address. You’re looking, it’s more kind of investigative, being a data detective. George Socha or Clare Chalkley, sometimes I've been known as Chalkers, or just Clare, or CC. Is it the same person? And then it's taking it through to that level. Clare Chalkley is also CC, she's also referred to as Chalkers. That’s one person and it's the same but different.
It's definitely something we’re seeing more of, the data breach work. And especially given that we've all been working on laptops at home, you've seen the increase in data breaches. So it's an interesting area and also the technology that’s coming out of supporting this type of review. Looking at the different types of analytics and how you can really kind of zoom in on PII and PHI, which is over and above running your kind of regular expression searches to try and find passport numbers or credit card numbers. So it's a whole other area of development and excitement. And as you said before, it never stands still. It's always moving, it's always changing. There's always something else to learn. So yeah, interesting times.
Ethical Issues that Accompany Industry Changes
Yeah. One of the changes we've had, of course, from the onset of the pandemic on, is that we now are using Zoom and Teams and Slack and any number of other tools much, much more than we ever were before and in ways that we hadn't even contemplated using them before, which brings up eDiscovery, eDisclosure challenges and ethical issues. What are some of the ethical issues that folks need to deal with that content in particular?
I think from my point of view, if you think back to when we all went remote working from home last year, it was a scary time when nobody knew what was going to happen, nobody knew how bad this thing was going to be. So if I was having a Zoom meeting with you, for instance, I would start by saying, “Hi George, how are you? How is the family? How's your kids, how is your wife doing?” And there was a lot of personal information exchanged. Sometimes those calls would have been recorded, sometimes they wouldn't have been. My son may have been running about in the background. My husband may have been crossing back and forth behind me. All sorts of things could have been going on. There could have been pictures in the background that are personal to me.
Eventually, all of this data that we're creating now and we’ve created over the past 14 months, it's going to trickle into the investigations and the disputes of the coming months and years. I think in terms of the collection piece and the identification bit, I think the industry as a whole has thought about this already. We're not going to be on the back foot when it comes to collecting this data. We're not going to be on the back foot when it comes to processing and filtering, getting onto the review platform.
Where my kind of ethical question is, how are we going to review it? How are we going to really filter out the personal stuff? The personal stuff in emails? “Hi Clare, how are you? I heard such and such happened”. That’s all information that people were sharing because we were trying to connect with one another. And you don't think at the time, “I'm not going to write that because this email might end up as part of a document review, in evidence in a litigation matter”. So that's kind of the ethical things I think or the ethical issues that I think about and how we're going to deal with this data in the future.
If we can turn all of our audio into transcripts and then search and filter and really drill down to just the key docs, then great. But the thought of having to scroll through and listen to personal conversations before you get to the business nuggets, it kind of sits uncomfortably with me at the minute. So I think that's one that needs a bit more thought. Someone cleverer than me.
Any closing thoughts here?
"There are dozens of opportunities to get involved, to tune in, to learn, to train, to swap ideas and war stories."
Closing thoughts. I was thinking about this because I thought you might ask me this question. The eDiscovery industry as a whole has been very, very good to me. I’ve had a fantastic career, and a fantastic life. I guess what I would say is, anybody who is coming into this industry to begin with, or is new to the industry, or even who has never really thought about it. There are organizations like ACEDS and Women in eDiscovery and ILTA. There are dozens of opportunities to get involved, to tune in, to learn, to train, to swap ideas and war stories.
There's a lot of opportunity to learn and grow outside of the certification, outside of doing your technical exams or your CEDS exams, which are fantastic, amazing. But often it's, I liken it to passing a driving test and having a driving license, but it doesn't make you a good driver. So get out there and speak to people and hear the war stories and learn about what happened in the olden days and how things progressed, and how I dealt with this case and how I dealt with that case. And there's a lot of people in the organizations that we know about, who want to mentor, who want to be involved and help people.
So I would say that and I would just say, it's a great place to work. It’s a great place to be. So yeah, that's a lot.
Okay, thanks Clare. Clare Chalkley is Vice President of Legal Services at Integreon.
I am George Socha, this has been eDiscovery Leaders Live, hosted by ACEDS and sponsored by Reveal. Thank you all for joining us today.
Next week's episode will be on Wednesday, June 16th, instead of the usual Friday, as ACEDS will be closed in observance of Juneteenth. And our guest next week, next Wednesday, will be Ben Hammerton of Quantuma Advisory Limited.
Once again Clare, thanks very much.
Thank you, George.