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 “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 sciences and healthcare sectors, and he also has experience assisting technology and media companies in responding to litigation and regulatory inquiries.
What attracted you to a career as a data and technology expert?
I began my career in corporate information security in Japan. Moving then to consulting in the early 2000s, I saw the opportunity to use incident response technical skills for the purposes of preserving and investigating unstructured data and end points. I took the opportunity to go on computer forensics courses and found I really enjoyed the nature of the work.
What skills make an effective data specialist in today’s climate?
Our practice is very broad-based these days. Whereas at the start of my consulting career as a computer forensics specialist, we needed an understanding of operating systems, these days we have mathematicians, data scientists and lawyers on our team. But I would say the key skill is listening. While we do have a range of standardised tools, on complex matters it’s important to listen to what the client (and perhaps their external counsel) want to achieve, and not try to push a square peg into a round hole. As we see more of what we call “alternate use cases” – such as M&A data segregation – listening to the client, and informed SME colleagues, is key to success in our business.
What are the main issues you currently face when assisting in aligning local and global market for your clients?
At the moment, it’s the difference in needs of the corporate investigations function in China (or indeed the broader Asia region) versus corporate discovery capability most likely built for US litigation purposes. Since the mid-2010s, there has been an increase in the size of the investigations portfolio for many clients, and the old model of sending these matters to a panel of external providers proved costly, even with favourable master service agreements in place. Accordingly, many clients have created and expanded the investigations function in-region; but as a corporate function there are of course budgets to manage and cost control expectations. Some of our clients have engaged with their own discovery functions, primarily out of the USA (even for non-US-headquartered firms); but time zones, languages and differing analysis requirements have led to a desire for a more investigations-focused and local data capability. We are supporting clients in building this capability and, importantly, the metrics required to run this as a corporate-driven activity.
How has the increasingly cross-border nature of investigations affected forensic data analysis? How has your practice adapted to this trend?
In Asia, we have a mixture of common law and civil code jurisdictions, and multiple jurisdiction-specific laws on protection of data – including PII and PHI, and even some blocking statutes. A single investigation can span multiple jurisdictions, which makes the logistics of just collection a challenge. If we would like to use analytics and machine learning on a matter, the inability to have a single hosting location will also have an impact on our planning to execute that strategy. Deloitte has addressed this through deployment of regional data centres with consistent discovery and analytics software stacks. How we might transfer learning from one database in one jurisdiction to another depends on the matter and the jurisdictions in scope, but this is something we do regularly.
What was the biggest challenge in growing and diversifying forensic technology business in markets such as Japan and Hong Kong, as a data and technology specialist?
As noted, it is beneficial to have data-centre-hosting capability in as many jurisdictions as is practical, to meet the needs of multi-jurisdiction investigations, or of a client with a regional portfolio of investigations work. That obviously needs a business case. After that, ensuring we have technology that can appropriate, tokenise, analyse and score Chinese, Japanese and Korean text to the standards we have set in our technology-enabled investigation workflow has been a key focus.
What is the best piece of career advice you have received?
Never mistake activity for action.