Richard Kershaw is a go-to expert for clients in the life sciences, healthcare and media industries; receiving plethora of commendations for his technology strategies in disputes and investigations.
Richard is a partner in Deloitte’s forensic practice, where he leads the forensic technology team in China. He also supports the discovery practitioners in Japan. He specialises in technology strategies for complex investigations and disputes, and policy frameworks for information governance and security. His primary focus is the life sciences and healthcare sectors, and he also has experience assisting technology and media companies responding to litigation and regulatory enquiries.
What challenges has the deluge of data in modern cases posed? How have you ensured you are well equipped to handle them?
Data volumes continue to increase as storage becomes cheaper and available also through cloud providers, but it’s not just the volume, it is also the differing formats data can be stored in as well. Keeping up with the latter challenge is an issue of technical expertise, which, while a specialised skill, is easier than the former. It has long since been apparent that using keywords to query ever-larger volumes of potentially responsive documents is inadequate, as it results in large populations of documents with a significant percentage false positive, which wastes time and money to review. Accordingly, we have geared up to ensure we have robust data processing on the front-end, to get data into queriable format, and then using a combination of analytics and machine learning to more efficiently determine a better-qualified, potentially responsive, review set. We have also undertaken rigorous testing to ensure these processes work on difficult Chinese, Japanese and Korean language documents.
How do you anticipate methodology surrounding discovery will evolve as the practice area continues to develop?
As noted in my answer above, use of analytics and machine learning is key to dealing with large volumes of data. However this is not just an issue of cost control and transparency; defensibility must always be at the heart of any investigation or litigation review. Consistent focus on quality control and assurance metrics will be critical for adoption of review expedited by machine. As an industry, we need to keep presenting sound methodologies backed up by QC to gain more acceptance by courts and regulators. We are still in a transition phase in terms of acceptance currently.
How has covid-19 changed your practice and your clients’ data programmes?
Historically, we used to regard users’ computers as the most likely complete store of data. This was because, particularly with email, server space was at a premium and users were encouraged through mailbox size limits to replicate or archive locally. If email was needed, often the only source available to the enterprise were backup tapes, which were time consuming and expensive to restore. Cheaper storage and the advent of technologies like Journaling, and now cloud provision through services like O365, have inverted this and the most complete and easy to access data stores are enterprise side, and not user side. Covid-19 has and will continue to accelerate moves to cloud enterprise provision. For those clients already well advanced on this journey, the question became how to effectively transfer that data to us. Whereas previously data may have been loaded by client IT to hard disk and shipped, with covid-19 precluding this in many jurisdictions, we have partnered with clients to stand up stable file sharing technologies and associated protocols for integrity and completeness checks.
How do you effectively handle international discovery matters that require engagement with differing cultural attitudes to privacy of data?
Local legal advice is critical. We often work with the client, local counsel, and international counsel. We will support local counsel in explaining the processes we follow to preserve data when gaining custodian consent to collect. In terms of review, for cross-border matters we will seek to understand any data overlap between jurisdictions. For example, if we have two collections, one in the PRC and one in the US, and 50 per cent of the PRC data is also already resident in the US through regular course of business, we would recommend to review within the PRC only that data which is resident exclusively there.
What skills and traits would you encourage the next generation of data experts to develop?
The forensic technology field continues to grow in both breadth and depth. Within my firm in China, we have separate forensic analytics, discovery, and cyber forensic partners. We try to train associates across all areas in their junior years but the specialisations can end up very different. In discovery, I’d say we will need investigations attorneys and data scientists. I will also say my undergraduate history degree turned out to be more applicable to my digital forensic reports than I was expecting!
What would you like to achieve that you have not yet accomplished?
I would like to brew a beer at home that isn’t completely awful.
Richard Kershaw is a pre-eminent data expert, lauded by peers as “super knowledgeable and bright” and a “very safe pair of hands”.
Richard is a partner in Deloitte’s forensic practice, where he leads the forensic technology team in China. He also supports the discovery practitioners in Japan. He specialises in technology strategies for complex investigations and disputes and policy frameworks for information governance and security. His primary focus is the life science and healthcare sectors and he also has experience assisting technology and media companies responding to litigation and regulatory enquiries.
What do clients look for in an effective data and e-discovery expert?
In China, our clients could be described as being in two very different situations. We have multinational corporations, who usually require digital forensics and e-discovery in the context of their internal investigations portfolio. They are looking for in-country technology capabilities and credible experience from practitioners. To them, understanding of the types of issues that face their industry in China is important, combined with language-enabled technology enablers, both of which are critical for efficient and complete investigative review. Our other client group is Chinese companies with global operations, sometimes overseas-listed, who are involved in (primarily US) litigation. They are usually new to the requirements of a discovery process and are looking for guidance and help to minimise impact on their operations, ensure the security of their data and for us to be able to speak the same language technically as their offshore external counsel.
What are the advantages and disadvantages of having a global practice?
Certainly we live in a world of sometimes conflicting regulatory obligations, not least laws on data residency and data protection. Having data centres in key global locations helps clients and counsel conduct review onshore, which helps mitigate some of those challenges, as does our ability to report on data overlap between document populations in multiple locations. In addition to data centres, we also have digital forensic labs from which we can deploy in many jurisdictions around the world, without the need to fly in – which in this era of covid-19 has been more of a logistical benefit than a pure cost consideration. It is also a considerable advantage having colleagues well experienced in language and local considerations. In terms of challenges, because we are large and global, inevitably sharing knowledge, tips and techniques in a timely way is something we actively need to consider. Also, our coverage does mean we get to work on large, multi-jurisdictional cases, which means multiple time zones and so often calls early morning and late at night. Making sure we manage our team and keeping an eye out for burnout, is very important.
In your experience, how are restrictions arising from covid-19 affecting the investigation process?
Getting data got harder. Our forensic tech teams are based in Hong Kong and Shanghai. We were unable to travel from Hong Kong to southern China and there were periods we could not travel to certain areas within the PRC even from Shanghai. Some clients had the option of collecting from their enterprise sources, but even then, if their offices were closed, nobody could put data onto physical media to ship to us. We have been working with clients on better ways to collect and transmit data, which in turn has led to opportunities to discuss efficiencies both from a process and an automation perspective.
In your experience, how has the trend towards home and virtual working affected clients?
We see three areas clients need to consider when considering home or remote working: obtaining data for investigations, data exfiltration and external cyberattacks. If staff are working from home and their data is needed for an investigation, that needs to be considered in the triage process: do we have sufficient data from enterprise sources? If we need the endpoint, can we ask them to come in and what are the risks associated? If we want to use network forensic tools, how are the staff connecting to the network and can the enterprise forensic tool ‘see’ data through that connection? Similarly, if an organisation is allowing remote access, is that limited to specific endpoint devices which they can monitor and control? And finally, we have seen cyber attacks trying to exploit the home working trend, and as ever, training (and pre-planned steps to respond quickly) are key here.
What are your personal objectives as the world reopens after covid-19?
During this long year or so of no travel, I have had the opportunity to go hiking in Hong Kong’s many and varied islands and parks. I very much hope to continue doing so.