In this installment of his interview series, Jay Leib—kCura’s chief strategy officer and resident computer-assisted review expert—discusses computer-assisted review and industry perceptions with David Horrigan, an attorney as well as an e-discovery and information governance analyst at 451 Research. 451 Research focuses on understanding developments and trends in the legal industry from two perspectives: the law and the technology market.
Jay Leib: What trends are you seeing in the legal industry right now related to computer-assisted review? What’s the temperature of the market?
David Horrigan: The legal industry is absolutely much more receptive than it was a year ago. The feedback we receive indicates that more and more e-discovery requests for proposals are making specific references to computer-assisted review technologies, such as predictive coding. Much of it started in February with judicial acceptance of computer-assisted review in the Da Silva Moore case, which gave many lawyers the confidence to explore the technologies without being accused of trying to use voodoo science. Of course, the underlying technologies have existed outside the legal field for years, and legal acceptance grew during the year in a progression of cases, including Kleen Products, Global Aerospace, and In Re: Actos. I think a really interesting development was the October court hearing in the EORHB case—known by many as the Hooters case—where the court told the parties that, if they didn’t want to use computer-assisted review, they needed to show cause why not. We went a long way in a few months: a court pushing the technology is a big step past merely allowing it.
Over the course of the last two or three years, we’ve seen the advent of computer-assisted review, text analytics, and a lot of other great technologies for e-discovery. Do lawyers and investigators need to understand these types of technology at a deeper level?
To a certain extent, I think learning deeply about these advancements is important for everyone. It’s mastering the basic information, but it’s also keeping up with legal developments and industry perceptions. Technology has been a factor in complex commercial litigation for some time, so a few years ago, we would have advised commercial litigators to become well aware of various technologies. But, until recently, e-discovery usually wasn’t an issue in, say, slip-and-fall cases or family law matters. That’s changing quickly, due in large part to social media, and lawyers need to be prepared. In fact, the ABA House of Delegates has approved amendments to the ABA Model Rule of Professional Conduct 1.1 on competence, adding language stating that lawyers should keep abreast of the benefits and risks of relevant technology. So, if we could turn back the clock, we’d advise litigators in all types of practices to keep up with the latest technologies.
As adoption of computer-assisted review grows, are you hearing folks discuss the sophistication of the solutions available? Are we still in a first-generation phase with these products, or are they getting more mature?
I think we’re at least in the intermediate stage. We discussed how the underlying technologies have existed in other fields for many years, but for e-discovery uses, it didn’t have the level of sophistication that Relativity Assisted Review and some other products have today. We haven’t gotten to the maturation point yet, but as far as lawyers’ use of these products is concerned, there was a time when lawyers just couldn’t use them at all. They might have certain staff members working with them, but it was mostly a job for the IT department to handle. The lawyers got printed copies of important documents after their tech team ran the workflow. Then they moved to online review of those key documents, and now you’re getting to a stage where lawyers are actively using the technology on a daily basis. I think it’s going to keep expanding from there.
Do you feel like more senior attorneys are getting involved in the technology?
Absolutely. One of the big changes in a computer-assisted review is that you’re going to need senior-level attorneys working on it from day one. They’re going to be more involved with this than they might be with a linear review. With traditional review, you typically start with junior attorneys reviewing a broad collection of documents, and then gradually move up to the senior attorneys as the information becomes more targeted. But that’s not how it works here. Plus, senior lawyers should be intimately involved in the technology selection, because they’re using the applications more and more. Computer-assisted review has been a driving force for getting more senior attorneys into the e-discovery process from the beginning.
We do know that there are certain things lawyers are never going to do. They’re not going to be full-time data managers, and they aren’t going to be computer scientists. They’re growing when it comes to technical competency, but time and again, ease of use is the real need here. Lawyers want to make fewer calls to their IT departments during their case work. They want to get more done without needing the constant support of a tech, or becoming techs themselves. Having said that, the lawyers of 2013 and beyond are going to be much more technical than they were years ago.
Lately, there’s been a lot of talk about Big Data, especially regarding corporations. Do you feel that law firms are adequately prepared to advise clients facing Big Data challenges within e-discovery?
Oh, I think they’re getting much better. Today, you’re seeing large law firms with big e-discovery practices of their own. That’s something that was almost completely unheard of 10 years ago. Granted, there aren’t many of these practices now, but they’re there, and more firms are bringing in people who are really specialized in e-discovery. Also, law firms are becoming much more sophisticated in the ways they leverage e-discovery technology to identify the important information in each case. Even smaller law firms are getting into the game. In addition, a new generation of lawyers is flooding the field. This generation has grown up using advanced technologies, and that’s really going to help firms of all sizes get a grasp on how to use these things to their advantage.
If you had to give a single piece of advice to Relativity Assisted Review users for 2013, what would it be?
I would tell them to think about how they could leverage Assisted Review on a daily basis. I’m not saying it’ll work on every case. In fact, as we sit here in 2013, it definitely won’t. But still make that effort to think about it each day. Ask yourself, “Would it work for this project?” For smaller cases, probably not. But now that it’s yet another tool that’s integrated tightly into Relativity, and now that it’s a bigger part of a litigator’s toolbox, it deserves more thought. Just as you might think, “How can I use keyword search on this data set?” in every case, think “Is Assisted Review going to work for this one?” Ask that question regularly, every time. The fact that Assisted Review is built right into Relativity is going to make that thought process—and the execution—a lot easier.