The need for e-discovery tools

John Markoff in the New York Times has a detailed article on the emergence of software tools to help in the analysis of electronic documents (and, one could easily presume, scanned and OCR’d physical documents) in litigation:

Now, thanks to advances in artificial intelligence, “e-discovery” software can analyze documents in a fraction of the time for a fraction of the cost. In January, for example, Blackstone Discovery of Palo Alto, Calif., helped analyze 1.5 million documents for less than $100,000.

Some programs go beyond just finding documents with relevant terms at computer speeds. They can extract relevant concepts — like documents relevant to social protest in the Middle East — even in the absence of specific terms, and deduce patterns of behavior that would have eluded lawyers examining millions of documents.

“From a legal staffing viewpoint, it means that a lot of people who used to be allocated to conduct document review are no longer able to be billed out,” said Bill Herr, who as a lawyer at a major chemical company used to muster auditoriums of lawyers to read documents for weeks on end. “People get bored, people get headaches. Computers don’t.”

Since I work in litigation support myself and have to search and read documents — I’ve had individual cases with over a million pages of documents — I welcome such tools as these. Still, the overall theme in the article seems to be that humans will lose jobs due to these tools:

Quantifying the employment impact of these new technologies is difficult. Mike Lynch, the founder of Autonomy, is convinced that “legal is a sector that will likely employ fewer, not more, people in the U.S. in the future.” He estimated that the shift from manual document discovery to e-discovery would lead to a manpower reduction in which one lawyer would suffice for work that once required 500 and that the newest generation of software, which can detect duplicates and find clusters of important documents on a particular topic, could cut the head count by another 50 percent.

What the article does not address is the enormous financial burden that e-discovery has imposed on both parties in modern civil litigation (see also here and here).

It used to be that each side would gather physical documents from files and storage boxes, review them for responsiveness, then produce them to the other side. Outside of large corporations, most parties would not have great volumes of such documents.

However, with the advent and pervasiveness of digital technology — computers, e-mail, servers, instant messaging, and so on — even a relatively small firm or organization can find itself with gigabytes, if not terabytes, of potentially relevant production. And, to avoid court sanctions, all of that has to be combed through and reviewed for responsiveness. Most organizations below a certain size just can’t afford to do that the old-fashioned way with “a platoon of lawyers and paralegals who [work] for months at high hourly rates”.

The article also does not address the existing document organization and search tools that are a bit less artificially intelligent — and a lot cheaper — than the tools he covers, but that still allow complex search terms to be set up. I make heavy use of dtSearch in most of the cases I work on (and can recommend it highly). I’ve also used such standard legal document management tools as Summation and Concordance.

About the Author: bfwebster

Webster is Principal and Founder at at Bruce F. Webster & Associates, as well as an Adjunct Professor for the BYU Computer Science Department. He works with organizations to help them with troubled or failed information technology (IT) projects. He has also worked in several dozen legal cases as a consultant and as a testifying expert, both in the United States and Japan. He can be reached at 303.502.4141 or at bwebster@bfwa.com.