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Archive for March 6th, 2011

E-Discovery hits the Mainstream

Posted by rjbiii on March 6, 2011

The New York Times “discovers” E-Discovery

If you’re reading this, you’ve probably seen the NYT article on e-discovery, and how use of EDD apps is replacing “armies of expensive lawyers.” What was different about this article is not that it looked at the promise of better technology, or that it discussed savings in the discovery phase because of new software, but rather that it used the fact that by better using the new technologies, some attorneys were out of a job. So, the article used e-discovery as a microcosm for the national economy, comparing document reviewer job losses to losses by workers in other fields. The Times refers to a process of “hollowing out” the American economy. While that is interesting, I don’t find the comparison particularly accurate.

I admit that a cottage industry in document review has formed, driven by the obligations imposed by our legal system. The growth of the legal document review industry has accelerated, driven by new technologies and the embrace of “ESI” as relevant objects of examination by the courts and lawmakers. But practicing law, at least at its core, has very little to do with the process of finding and culling most of the documents found in data-sets on a company’s IT infrastructure. Admittedly, the action of classifying a document or file by a reviewer “responsive,” “privileged,” or “not relevant” does involve using judgement, and that judgment must be informed by the legal context in which the review operates. Furthermore, the protocol used to “conduct a reasonable inquiry” into the existence and location of relevant documents must certainly be executed under the management of an engaged and knowledgeable attorney. E-discovery is, in my opinion, a legal project, and not one for IT.

That said, we are currently in a place where e-discovery legal expenses are disproportional to those expenses associated with the rest of the matter. Ultimately, lawyers do not go to law school and into their profession to read and classify computer files. They are not librarians or IG specialists. Most don’t want to be. So, the replacement of “armies of expensive lawyers” made possible by e-discovery technology is something of a “restorative” medicine to the legal process. It should also be noted that technology also was a catalyst for the growth of much of this industry in the first place. Far from “hollowing out” skilled jobs, technology behind search and retrieval, data storage, and digitization of “hard copy” information actually led to the explosive increase of jobs in certain fields.

The trend with respect to document review, of course, will continue. Automated classification systems are being tested and, often are touted as being more accurate than “human review.” Much must first be worked out, with respect to acceptance of automated “decisions” with respect to classification methodologies, and even once implemented, some human (attorney) judgment will still be needed. But the days of huge teams of lawyers reviewing data for extensive time periods is numbered. My argument, therefore, is simply that in replacing staff who are eyeballing huge volumes of documents with an eye toward classification for relevancy, technology is not replacing lawyers who are actually practicing law (all legal definitions of that term aside), but will simply allow for the practice of law without the distractions that currently exist. At least it will, once the promise of that technology has been fully realized.

Lexician Piggy-backs on Times Article to Push Legal Project Management

Lexician uses the NYT article as a foundation to emphasis the need for increasing efficiency in E-Discovery matters, specifically by better managing them. From the post:

The NY Times is sending a message that efficiency is now part of the baseline set of “features” in choosing an e-discovery supplier, whether vendor or law firm. They’re sending that message to CFOs everywhere. It won’t take long for that message to flow down to any GCs that have been doing things “the old way.”

Technological features aside, it is also safe to mention that process, both with respect to defensibility and efficiency, has been neglected. Process will become increasingly important (and should be more of a focus than it currently is). Using technology without employing a vetted process is inviting chaos to the party.

Ralph Losey Argues with NYT

Another noted commentator in the field jumped on the NYT article as well. Losey argues that the Times’ proposition that advances in E-Discovery technology costs jobs is contrary to actual circumstances. He notes that new software creates new, highly-skilled positions, rather than eliminating them. Some of this is similar to my position above. I will quibble with the following passage:

The new technologies advancing search and review automation discussed in the story do not replace “expensive lawyers” as alleged. The new software does, however, force lawyers to learn new, more highly skilled tasks. The article seems to overlook the fact that the advanced e-discovery search and review technologies all still require lawyers to operate. They still require skilled attorneys to fit the technologies into a larger legal methodology. They still require the ESI to be understood. The software programs do not run themselves. They are only a tool. They are just a hammer, and without a carpenter, they will not build a case on their own.

Not exactly. Any time new technology comes forward, some positions are lost. Many can be transitioned to new roles, often requiring new skills, as Losey describes in his post. But there will be fewer jobs for document-reviewing attorneys in the future, due to the implementation of technologies that:

1. More efficiently cull out non-responsive data prior to review; and
2. Automatically classify documents (likely based on a human-reviewed sample created at the beginning of the review process).

While other types of jobs may emerge (in such fields as Legal Project Management, Search and Retrieval, Computer Science, etc…), this doesn’t mean that some jobs aren’t lost. They are.

This is a minor disagreement however, as I found myself in agreement with almost all of Losey’s article. I especially enjoyed the embedded Star Trek video of the trial of Capt. Kirk. Nice touch.

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