This post was originally published by H5, a Relativity Premium Hosting Partner, on their True North blog. We found it to be an informative look at how big data has transformed the attorney experience of discovery. Visit True North to read the full article.
Let’s face it, today we’re living in a world of “big data” and bigger data. Like it or not, the world is now data driven, fueled by an ever-evolving variety of data sources. For the most part, we’ve become inured to it—“big data” is just part of the social vocabulary now.
Big data: The two-headed beast.
That’s not to say we reap no benefits. Big data certainly allow both individuals and organizations to achieve remarkable cost savings, engage in more accurate decision-making, and drive product development and consumption more precisely tailored to our needs.
But there are costs. With the volume of data out there, we worry about invasion of privacy and identity theft. Compliance concerns abound. Cybersecurity, data privacy, and IP threats have now ascended to the top of the corporate risk list.
This isn’t news to litigators. For both in-house and outside counsel, “big data” is a beast looming large. Buried somewhere within that big data pile lie the fact patterns and evidence that can make or break a matter. Finding it is very hard.
Why it matters that documents are now data.
If you contrast today’s big data world to a paper one, the differences are obvious. For one thing, the data world is larger, rife with both variety and duplication. Plus, there is always the data about the data—metadata—to consider, comprising evidence as real as the content itself.
Luckily, when you have data, you can use technology and apply data analytics to slice and dice it, enabling all kinds of investigatory activities precluded in the paper world. For example, in addition to the e-discovery advantages of data, such as de-duplication, email threading, and culling, there are also matter preparation advantages. In the right hands, data analytics combined with linguistic expertise can provide things like:
- Fact chronology support: The correlation of subject matter to dates to strengthen and fill gaps in the fact chronology.
- Sentiment analysis: Identification of emotionally-charged communications, such as aggression, anger, concern, confusion. Sentiment analysis can even uncover attempts to conceal information.
- Production gap and trend analysis: Identification of patterns of underproduction of email or unexpected trends during critical timeframes.
- Witness finder analysis: Identification of custodians linked to relevant documents, which also facilitates the identification of previously unknown witnesses.
- Witness impeachment analysis: Identification of witness vulnerabilities via rapid identification of documents that undermine witness credibility.
- User ID association: Identification of critical links between individuals and documents they created or received using instant message IDs, personal email, or email distribution lists.
Big data and the responsibilities of counsel.
As big data grows, counsel’s seat, already hot, is getting hotter. As technology use increases, so do ethical demands from legal associations and the bench requiring counsel to step up their technological expertise. It’s a pretty steep learning curve to try to understand data sources, technologies and their e-discovery implications while trying to practice law, but nonetheless, it’s now a responsibility.
Despite the efforts to limit the scope of discovery with proportionality considerations (see the recent amendment to Rule 26(b)), it’s still a process riddled with complexities. The bigger big data gets, the harder it is to manage and the more difficult it is to find the information that matters, especially if linear document review is still the method of choice. What can be done? How can counsel be ready when big data and litigation collide?
Avoiding the crash: staying ahead of the big data game.
For one thing, remember the old scouting adage: be prepared. It won’t help to be blindsided by unanticipated data considerations. But more importantly, understand that when information is data, not documents, it’s a new playing field. A few simple activities can help:
- Understand your client’s data landscape. A data map, or even just a general sense of enterprise data platforms and assets can help anchor legal hold and e-discovery considerations. Try to get a handle on your client's policies and procedures surrounding email, social media, mobile devices, data storage, and other activities that can contribute to their data in a significant way. Understand policies for data retention, including the deletion of data they are no longer legally required to store. While you may not fully understand the scope or the depth of corporate data assets, you can at least understand where data comes from, where it is stored, and how it is used by the enterprise.
- Forge relationships with corporate IT. Often, what seem like data and technology hurdles are actually communication issues. Establishing relationships with folks who are likely to know more than you do can be an effective way to find out what you don’t know; they can help you fill in the gaps. This may include individuals who work in dedicated data governance roles, network infrastructure, IT policy, or other roles related to the creation, storage, and disposal of data assets. Ultimately, these on-staff experts know a great deal more about your client's data than you do. They're close to the processes that dictate how data moves throughout the enterprise. Ideally, they can help you quickly understand the scope of the data assets that can matter in litigation.
- Keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology (the ethical imperative). Technological tools to process and review data post-collection are rapidly changing. Data reduction and culling tools, especially, can help from the beginning by identifying duplicates and responsive or unresponsive information. The smaller the review set, the lower the cost. Predictive coding tools for relevance ranking are being offered by a growing number of providers, either as software for purchase or as a service.
- Leverage available expertise. Lawyers know the value of expertise; they make their living by it. Technology used in the legal realm—especially for e-discovery and technology-assisted review of big data —is complex. It requires the input and analyses of those who are experts in particular aspects of the field. For litigators to dedicate themselves to learning the latest technologies and techniques in-depth isn't necessarily the most effective plan. Best practices change rapidly, and you may find that the state-of-the-art you learn today is obsolete tomorrow. Find experts you can trust and work with them to sharpen your awareness and raise your level of knowledge.
The bottom line.
Big data and litigation will most certainly collide, but it needn’t be the big bang. Counsel who are able to adapt to the times, leave old paper paradigms behind, and take preparedness seriously will surely find that these precautions will lead to a much softer landing.
