Scott Robbin: Can you start by giving us a better understanding of your background and your role over at Clutch Group?
Brian Flack: I am the General Counsel and Vice President of Client Services at Clutch, responsible for managing the company’s overall legal, risk, compliance and governance functions. I also have an overall responsibility for our operations and delivery, which means I work with others in the company to develop and implement the global strategy in our delivery-service model. So in a sense I have a dual legal/operational role at Clutch.
I previously worked in a similar role for a number of years at CPA Global, where I helped grow the legal outsourcing business at the company and handled internal legal matters. Prior to that I was a partner at the Venable law firm in Washington, D.C. for about a decade focusing on white collar criminal defense, where I handled large complex criminal and civil litigations as well as internal investigations within a number of different industries. Some of those included Justice Department-led cases against well-known household corporations, and being part of that really helped me think about how to structure a case, conduct an investigation, develop facts to support a case, form a defense and think about where the other side is coming from.
And that’s what’s important because much of what we are trying to do at Clutch is help companies think about their discovery needs and their cases in a way that gets to their core facts and issues in a more efficient and cost-effective way. Because cases aren’t that much different today than they were 10 or 15 years ago. There are only a couple of hundred to a thousand or so documents that are going to play a critical role in a case. What has changed is that even though you can get those documents much more easily now, they are buried within terabytes of data that sit in corporations. So getting those documents in a much more impactful way is our focus.
Clutch really focuses on three core strengths: fact development, technology management and process engagement. Can you get into what each of those mean and how they should be viewed by a general counsel?
We’re not trial attorneys at Clutch. Marrying the factual analysis to the law and doing legal analysis and everything needed on the back end is where outside counsel comes in. Our expertise is in marrying what the law firms traditionally have done well with a focus on technology in the practice of law. Because that’s not the kind of thing you learn in law school.
So our three core strengths are critically important in helping companies achieve their ultimate goals in the course of any litigation or internal investigation. When it comes to factual development, we have folks who specialize in helping outside and in-house counsel by looking at the document and getting to the core of what is involved in the case. How can you find what is really important to the case in a much more effective manner than has been done in the past?
Because so much is muddled and there is so much noise due to the volume of documents that really aren’t applicable to the case. And it’s not just that I am reducing costs by reviewing fewer documents. The value is in getting to the facts in the documents early so I can make more intelligent decisions on the front end of my case. Should I settle? Do I have facts that support my arguments that I can push back against the other side? Do I really want to make a decision to spend X amount of money on discovery? So getting to the core issues of the case earlier can impact what decisions are made from an in-house standpoint and define where you want to go in any individual matter, whether it’s a civil investigation or a criminal matter.
So your clients don’t want outside counsel wasting time and money trying to look at information that is not going to be relevant. How does technology help uncover the documents needed for the matter at hand?
Technology management today is critical, and there are plenty of technologies out there that can help you get there. The biggest buzz right now is around predictive coding, which analyzes data and uses an index and algorithms to search for information. The key for us though is that we look at technology for each matter and for each client, as well as the types of cases they have and what would be most effective in helping them achieve their ultimate goals. Technology is not something that lawyers really think about, which is where we come in.
And again there is no one-size-fits-all approach, but one of the things we are looking at is employing technology that can interpret information not just from a keyword standpoint, but from a conceptual standpoint. What I mean by that is when you are conducting an investigation and don’t really have your arms around the facts, if you’re just searching for keywords those words can have different meanings depending on how they’re used. A good example of this is the word “target.” Target can mean a number of things in a number of different conceptual ways. So we are building technology that looks at concepts much more effectively to help you find the key core documents in a more efficient manner.
And finally how does process engagement fit in?
All of this has to be married by having the people and the processes in place to drive the technology that helps in turn drive the factual development. And we as an organization have a very defined process of how we structure our cases, our workflow and our organization to ultimately work with outside counsel and in-house counsel on any given matter. That’s critically important today, because the process that you have in order to deliver your services is what drives the quality control and the ultimate work product that is produced at the end of the day.
Is that what differentiates you from some of the other discovery providers out there?
When you’re involved in a criminal investigation, what drives your process is the facts. And you want to be able to get to those facts very early on in your case, because that will drive the decisions that are made all along the way. Focusing on that is what differentiates us from a lot of the other competitors out there. Because at the end of the day anybody can just turn over a coded database or respond to a document request for a grand jury subpoena and turn over documents. But just turning over a set of documents isn’t very meaningful. There has to be some sort of analysis to help lead to a decision.
So again we’re not only helping counsel find facts that support their case, we are also finding documents that might be damaging, because counsel wants to know that quickly as well. Is there stuff that hurts my case? Are there conversations that don’t necessarily align with what we were thinking? Is there an adverse position that we want to take?
Focusing on the documents and facts they need to structure their case is what we talk about, because the purpose of discovery has gotten sort of lost, in my opinion. We’ve become wrapped up in producing a set of documents to the other side that we’ve lost sight of what is the ultimate purpose behind discovery. What is it that we’re really trying to do? What are we trying to accomplish out of discovery? Because at the end of the day discovery is about using the resources and technology to help our clients achieve the best results possible.
What sort of work are you doing outside of litigation?
We’ve worked with banks when they’re trying to get a sense of all of their OTC documentation, for instance. All their OTC documentation that they’ve been building up for the last decade or so, all these agreements that are client-facing, they involve billions of dollars worth of transactions but they haven’t been managed effectively. Now new regulations have required them to understand their leverage and risk, and have collateral if they want to clear any of these trades centrally through their banks. That means they need to get the reference data that’s in these agreements as quickly as possible.
That’s something many banks were trying to tackle internally, and they were bringing in big consulting firms or accounting firms. But those types of tasks are things that we take on regularly, and we’ve used our own technology that will automatically extract the data from the documents and validate it. Initially you would have had a human go through an 85-page contract, extract 105 fields from it and then put them into one of the bank’s systems. That could take four to six hours and be prone to error because you may have tons of people doing it. Banks sometimes go through hundreds or potentially thousands of these every day and use a human analysis that may be only 60 or 70 percent correct.
So we’ve created a solution that validates the data rather than just manually extracts it. We’ll have our attorneys do a double-check, and we’re able to increase our level of accuracy to the 90-percent range and get that data back to them in six hours or less. Sometimes it would take weeks to do that.
So then you work in other areas besides compliance or risk, correct?
The processes that we’ve built on the e-discovery side could be employed in numerous others ways within an organization. For instance, there have been a number of regulations that have required the banks and the financial industry to look at a lot of their contracts and what they have on their own books. We told them that there’s no reason why we can’t leverage what we’ve done to help them from a contract-management and compliance standpoint to get their stuff in order. So we’ve taken those processes and married them in other ways within the organization that’s not just focused on e-discovery stuff, which will add an incredible value for a lot of those clients.
Before we conclude is there anything else you want to touch on?
We get a lot of data from companies which ends up sitting in a black hole because nothing is done with it. What if you could take the volumes of data that you’re getting from a company and actually analyze it for trends? And from a compliance or risk standpoint, could you feed that data back to an organization to help them see the trends? For instance, the compliance group could see that they have deficiencies in certain areas that they didn’t pick up. You get more return on investment now with that data set.
So from an in-house counsel perspective we can reshape the dynamic of cost going out the door but very little return going back in. We have this data, let’s analyze it and put mechanisms in place that will help you achieve your own internal goals within the corporation that will help fuel growth. Or it could be used to improve on certain things that are being done. So it goes beyond the e-discovery market, and could be used in malls and businesses marketing contacts, for instance.
Sounds like you have some interesting plans to grow out the business.
Yes outside of the much broader concept of discovery, we are building out a number of technology pieces that will enhance where businesses are going, both on the compliance side and on the e-discovery side. There’s an evolution in the marketplace, and we think we’re at the forefront of really thinking about where the market is going and helping our clients meet the obligations and all the regulatory requirements that they face.
Brian Flack is the General Counsel and Vice President of Client Services at the Clutch Group. In this role, Mr. Flack is responsible for managing all aspects of the company’s legal, risk, compliance, and governance functions, as well as the development and implementation of our global managed review strategy and service delivery. He works with corporate clients to manage the risks and costs associated with discovery and document management in complex criminal and civil litigations, internal investigations and business transactions. In addition, Mr. Flack has worked with companies to develop best practices to ensure legal and ethical compliance with discovery rules and procedures as well as developing internal document retention, preservation and litigation hold policies and procedures. He has extensive experience managing and supervising large complex litigation and regulatory matters across multiple industries.
Before joining Clutch Group, Mr. Flack was Senior Counsel and Global Practice Head of the Litigation & Investigations Practice at CPA Global, a legal services outsourcing company. Prior to CPA Global, Mr. Flack was a Partner at Venable LLP in Washington DC, where he worked extensively in all aspects of white collar criminal defense and enforcement-related litigation, including representing corporations and individuals in grand jury investigations, managing parallel criminal and civil proceedings, going to trial, and advising on voluntary disclosure and compliance issues. He has responded to search warrants and grand jury subpoenas and has also performed numerous internal investigations for public and private companies and counseled those companies regarding disclosures, reporting, compliance, corporate governance and document retention issues. Prior to Venable, Mr. Flack was an attorney in New York City focusing on civil environmental litigation.
Mr. Flack earned his JD and Environmental Law Certificate from Pace University School of Law and his BS in Business Administration from Pennsylvania State University, University Park.
Scott Robbin is a director at Argyle Executive Forum. In this role, Mr. Robbin manages content development, editorial speaker recruitment, and execution for 20+ annual business events. He has over five years’ experience working on the production and implementation of senior-level events. He holds a Bachelor of Arts from Columbia University, where he was captain of the varsity tennis team.