knowledge | 21 July 2020 |
COVID-19: Some Legal Technology Risk-Management Benefits
Economies globally have slowed down dramatically due to the COVID-19 pandemic and, as a result, businesses around the globe are responding to an unprecedented level of disruption.
The necessary social distancing measures implemented to contain and control the virus have seen the disruption of service and supply agreements, changes in employment conditions, and a rise in insurance claims by businesses. Force majeure and business disruption insurance are “hot topics” due to the pandemic’s impact on commerce. Although it remains to be seen how matters will play out, some commentators are expecting that these, and other knock-on effects of the pandemic, may be the subject of a wave of litigation.
In mitigating against any potential litigation risk, many businesses have underway a process of identifying whether any of their agreements have been compromised by the pandemic, and if so, in what way. Knowledge of what is and is not in your agreements is crucial to ensuring organisations navigate a safe course through this crisis and into the future. For many businesses however, such a project is a very significant undertaking, involving a review of copious agreements spread across various sectors and disciplines. Performing such a project efficiently and cost effectively can be a challenge, however it is widely acknowledged and proven that technology can take on much of the heavy lifting, and it has never been more accessible than now. What follows in this briefing is an overview of how legal technology, which is now relatively commonplace, can be used to efficiently analyse large volumes of documentation and how legal project management tools can create a coherent and collaborative response to the analysis.
Intelligent Document Review and a Structured Response
Law firms, and indeed many in-house legal departments, today, have access to advanced document review and analysis software, as well as project management tools. These tools are designed to specifically mitigate against risk by ensuring that their users are firstly, aware of the content in the matter documentation and secondly, capable of creating a structured response to that content in terms of actions to be taken and the timing of these actions.
Today’s document analysis software, whether geared toward discovery or due diligence (“DD”), generally boast some element of artificial intelligence (“AI”) with the most common form of AI being machine learning. These AI assisted review platforms point the user to the material elements in the document set under review; effectively pointing out the needle in the haystack for the user. The real power of these tools is the ability to provide a holistic overview of what is in a document set (whether structured or unstructured) efficiently and with a high degree of accuracy.
The machine however, cannot operate entirely free of human intervention, and specifically the identification of “key issues” will require some subject matter expertise. While certain areas and legal concepts such as employment law, insurance, and force majeure are likely to be real issues for businesses at present due to the pandemic, there is no “one size fits all” list of key issues which can be universally applied to businesses across industries and sectors. It must also be emphasised that AI is not infallible; is a machine learning programme, and so its understanding of legal concepts is only as good as the volume and quality of the examples it receives. It is for these reasons that the appropriate subject matter expertise remains a crucial part of any review.
Interrogation of agreements in this way will assist in effectively mitigating the risks to a business posed by any agreement which is potentially prone to COVID-19 related mischief, by getting that business ahead of any such potential mischief. This method is also efficient, cost effective, and light on human capital expenditure; no longer are armies required to perform large DD projects effectively.
Most organisations avail of some form of project management through technology solutions and many commercial law firms and businesses now have access to advanced cloud hosted platforms which allow for file sharing, document management, task management and communication with clients and third parties, in a secure environment. These tools can be utilised to ensure that any risk observed in a document review is properly categorised and a task is associated with it (whether follow up, court filing date, etc.). Tasks can be assigned to specific users and email alerts can be set to ensure that the appropriate parties, whether in-house or external counsel, are on top of matters.
A combination of these solutions helps businesses mitigate against the risks of being caught unaware should litigation arise due to the effects of the pandemic. Businesses can prepare themselves and help prevent any such litigation risk by efficiently isolating possible “problematic clauses” in agreements by using AI analysis. This will provide all relevant stakeholders with a high level overview of any agreement which potentially poses a COVID-19 related risk.
This preparation can be achieved by:
- efficiently narrowing down a document set by using AI analysis in order to isolate any provision that could pose a COVID-19 related risk;
- extracting the provisions for further analysis;
- categorising and curating the provisions into a coherent risk structure; and
- assigning associated tasks to all relevant parties to ensure the tasks are completed ahead of time.
On completion of this process a business will be provided with a holistic overview of its exposure to COVID-19 related litigation risk, and will be better placed to plan for those eventualities, should they occur.
How Can We Help
McCann FitzGerald are expert in technology assisted review, and pioneered the first use such platforms in an active matter in this jurisdiction. Our Digital Services team are proficient in utilising the available, industry leading tools in the most efficient and effective manner, ensuring that costs are appropriately managed and deadlines met in good order. Similarly, our Project Services team is staffed by lawyers from all areas of practice, skilled in delivering large scale review projects efficiently, utilising industry leading legal technology platforms, and leveraging best in class technology, legal project management and agile resourcing for projects to maximise time and cost efficiencies. For more information on the topics discussed, please contact our team.
Also contributed by Andy McDonnell and Patrick Jones.
This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.