The Wall Street Journal is the latest mainstream publication to address the predictive coding phenomenon that is sweeping the legal industry. In a June article titled, “Why Hire a Lawyer? Computers Are Cheaper," the newspaper addressed the viability of replacing costly human reviewers with cheaper, more efficient predictive technology. The article was anchored by a case involving Landow Aviation, a company facing a slew of lawsuits after a destructive jet hangar collapse. Landow “identified a batch of about two million electronic documents it would need to sift through for evidence of its possible liability in the roof collapses." Rather than hire human reviewers to go through each document to determine its relevance, the “company asked a judge to allow a computer program to do much of the initial work."
As evidenced by the article, so much of the e-discovery conversation has become dominated of late by the emergence of computer-assisted review, the use of computer algorithms to determine the relevance of electronically stored information (ESI). The attention is certainly understandable. For many companies, e-discovery costs have soared in recent years, and document review is accounting for a bulk of those expenses. According to the WSJ article, “As recently as a decade ago, corporate law firms conducted large-scale document review in-house, assigning young lawyers to the task billing at several hundred dollars an hour. But in recent years, legal staffing companies have proliferated, supplying law firms and legal departments with temporary lawyers who are paid as little as $25 to $30 an hour to review documents." While the use of contract lawyers has driven review costs down, organizations see computer-assisted review as a way to reduce expenses even more significantly.
What is getting lost amidst the computer-assisted review discussion is the emergence of technologies that can significantly reduce data volumes prior to the review stage. Respected e-discovery attorney Dave Walton, a partner at Cozen O'Connor, summed it up best in a recent article for Inside Counsel magazine:
Because much of the ESI costs relate to the attorney review, you should 'preserve broad and collect small.' Just because you preserve something doesn't mean you have to collect it. Broad preservation is important because once something is appropriately preserved, you can always go back to it. Targeted collections are critical to the often disproportionate costs of collecting and reviewing ESI.
Walton is among a growing number of e-discovery experts who advocate proactive measures early in the litigation process to hone in only the truly relevant documents related to a matter for collection. Similar to the way technology is transforming the document review process, advancements in e-discovery search, preservation and collection tools now allow legal and IT teams to scan data repositories in place and obtain critical information about potentially relevant ESI prior to collection. This is important for a number of reasons. Only a very small percentage of cases actually make it to trial. The sooner legal teams can attain information about the ESI, the sooner they can decide the best course of action to take in a matter. Why collect and sift through millions of documents when only a small number of truly relevant ones will suffice in influencing the crucial decision of whether to litigate or settle? Another important factor to consider is the extent to which large-scale document collection projects disrupt regular business processes. Collecting one disc image from an employee can render his or her computer out of commission for hours or days. Not to mention, all the countless files on the system that have no relevance to the matter or the duplicate copies of documents that may need to be accounted for in future matters.
There is no doubt that computer-assisted review marks an important advancement in e-discovery technology, but it shouldn't be billed as a panacea capable of curing all e-discovery ills. While much has been made about the sky rocketing cost of document review, an equally troubling e-discovery trend is the rampancy of over-collection. Advancements in defensible, early-stage data reduction technology and practices may not be generating the headlines of computer-assisted review, but they may represent an even more dramatic e-discovery paradigm shift in the future.
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