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eDiscovery Update: Electronic discovery still hot topic at LegalTech

Peter Coons

At the end of January, legal geeks, techies and nerds converged on a hotel in midtown Manhattan for the annual LegalTech show. The event, which had over 200 exhibitors this year and an estimated 10,000 attendees, draws legal technology enthusiasts from all levels including CIOs, lawyers, judges, paralegals, consultants and others interested in anything related to the joining of technology and law.

The show is not solely focused on electronic discovery, although that is a big component. Many of the exhibitors are showcasing case management applications or time and billing systems. However, since my satellite revolves around the planet of electronic discovery, that is all I seem to notice at this yearly event.

Each year the show usually has a few unofficial “themes” related to electronic discovery or as I like to call them, “marketing buzzwords.” A few years ago everyone was talking about early case assessment, then it was cloud computing and last year it was predictive coding, which is still a hot topic in the world of electronic discovery.

So what were people talking about this year?

Big data

What is big data you ask? Apparently, while we were all sleeping, organizations accumulated massive amounts of electronic data and now they don’t know what to do with it. Rather, how can they take advantage of data mining and analysis technology to make all that data useful (as in, make money from it)?

On my planet, big data is not how to make it useful, rather it’s about mitigating the risks associated with storing it and how to review it in a defensible and cost-effective manner. The more data a company has in its possession, the more it may cost to collect, process and review in response to a document request.

Companies have long struggled to manage data and the costs associated with its preservation, collection and production. This dilemma is not new, so why the buzz around big data now?

I am going to go with marketing and timing on this one, but I think this was a problem recognized by those involved in litigation long ago and it has now been given a cute name. Is your company or client thinking about the big data in its possession? Is it a potential liability from a discovery standpoint?

BYOD

This is not a directive regarding the type of beverage to bring to the next soiree. BYOD is “bring your own device” and refers to employees using personal devices (i.e. iPhones) for work-related purposes.

Despite the catchy moniker, this is not a new phenomenon. Employees have been using personal laptops to access corporate information for years. The difference today is the variety and number of devices in use.

Why is this potentially an issue? One reason is compliance and security. Most organizations have legal and ethical obligations to protect data stored on their networks. If organizations cannot control the devices that attach to their networks, it puts their data at risk.

The BYOD trend is a real challenge for security professionals. Another reason is preservation and electronic discovery. If one thinks that collecting from a few dozen laptops is logistically complicated, how about collecting data from a dozen laptops, two iPhones, three iPads, four Droids, two BlackBerrys, and three phones with counterfeit chipsets. How will organizations ensure they can comply with preservation obligations across countless, disparate devices? What is your company or client doing to address the BYOD movement?

Predictive coding

What is it? In an article last year, I briefly discussed predictive coding. As a refresher, it’s a type of computer categorization that classifies documents according to how well they match the concepts and terms in sample documents.

At a high level, the predictive coding process requires a subject matter expert to go through a sample set of documents. The sample documents are tagged either relevant or not-relevant. The predictive coding software then uses the YES/NO decision on those exemplar documents to rank the rest of the documents in priority order from most likely relevant to least likely.

Predictive coding made a huge splash at last year’s show. How about this year? It made an even bigger splash, but not for the same reason. Last year people were talking about how it works and its benefits. This year was about the successes, judicial “acceptance” and how it has the ability to fundamentally transform document review.

A fellow colleague commented that “… among all of the true innovations brought to market over more than two decades of litigation support, predictive coding is the fastest I have seen to adoption and general acceptance.” At a presentation I attended on the topic, a lawyer stated he’d gone from “zero to 60” with predictive coding in the one year since last LegalTech.

There are plenty of success stories and it is exciting to see the courts perceive the technology as a legitimate method to assist in the review and identification of potentially relevant material. Like any new technology there are early adopters that tout the technology benefits before there is a general acceptance of its use. Predictive coding seems to be on the general acceptance fast track.

Is your company or client looking at predictive coding technology when faced with a document review? If you are just getting acquainted with predictive coding or have no idea what it is there are countless resources on the Internet, just Google it.

Peter Coons is a senior vice president at D4, providing eDiscovery consulting services to clients. He is an EnCase Certified Examiner, an AccessData Certified Examiner, a Certified Computer Examiner (computer forensic certificates) and is a member of the High Technology Crime Investigation Association, the professional organization for people involved in computer forensics.