You may consider Pokémon Go! to be just a fad, but it heralds in a new era of augmented reality and the commoditization of app data. Millions of people are walking around, pointing their phone cameras at imaginary beasts, and then sharing the collected data with Niantic, the maker of the app.
Pokémon Go! may seem like it is all fun and games, but it is really about the business of data. That data presents financial opportunities, but creates risk too. As disclosed by Thomas Rid, the US Government has already issued operational security guidance for intelligence officers and friends playing Pokémon GO.
Pokémon Go! data will certainly be useful in legal proceedings (particularly if you crash your car while playing), and has already been used to catch a cheating boyfriend.
So heads up, Pokémon Go! players, we are pretty sure that “What’s your Pokémon level?” will be asked in an examination for discovery some day soon.
It is no surprise to anyone who has performed a linear review of documents that there is a better way. By better, we mean cheaper and more accurate. However, moving clients from the comfort of knowing that a lawyer has looked at every document to accepting a process that only puts eyes on a portion of the documents is, at times, difficult. Why? Because they trust lawyers and are skeptical about trusting the computer’s “black box”.
A recent comparative case study “Iterative Legal Analysis & Sampling (“ILAS”) vs. Linear Document Review” by Anne Kershaw, Esq. at the Columbia University School of Professional Studies, will help clients to see the light. Ms. Kershaw and her team answer the question "Can lawyers conducting iterative data analysis and sampling, identify relevant documents more efficiently than legal teams undertaking linear review?” The answer is yes: by using software and highly trained legal and technical resources, document review is more efficient.
The study is interesting for a few reasons. First, it is not a lawyer vs. machine evaluation. Rather, it is a comparison of skilled lawyers working with strong technical support and using litigation support software effectively vs. lawyers just going through documents in a linear fashion. The study shows that by combining legal insight with an appropriate use of technology, review can be cheaper. Second, the study only evaluated the assessment of relevance - no issue coding or privilege identification was conducted. One might think that a linear review would be at least as accurate in a binary assessment, however, the linear review missed 11.95% of the relevant documents, whereas the iterative analysis review only missed 4.28%. Pause and reflect on this - linear review missed almost 12% of relevant documents! Third, and to give humans some credit, the linear review had a much lower false positive rate - only 23 documents marked relevant were incorrectly coded. Contrast this to the 974 false positives coded by the iterative analysis team. From a risk management perspective, many clients will be much more comfortable with an error rate that includes too much, rather than misses too much. Further, these false positives can be purged in later steps in the disclosure process. Finally, the total number of hours invested in linear review was 98, compared with only 14 by the iterative analysis team. The differential more than justifies the higher hourly rate for the iterative analysis team.
Overall, this study provides a ringing endorsement for the use of multi-disciplinary teams with experience on the use of litigation support software. And, rather than suggesting that computers will replace lawyers in document review, it provides a strong rationale for paying higher hourly rates for skilled and trained lawyers. If your document review outsourcing decisions are based upon getting the lowest hourly rate, this study shows that you may not be getting good value. With a skilled team using the right processes, the result will be both better and cheaper.
At the Ontario e-Discovery Institute 2015 conference in Toronto, Maura Grossman, of Counsel at Wachtell, Lipton, Rosen & Katz in New York, announced that, “talk was the next text” effectively predicting that audio files were the next big challenge for e-Discovery. With every customer service call being recorded for “quality control purposes” and all verbal instructions around trading being logged, the future seemed like it was already upon us.
Facebook has now pronounced that it will be 100% video in 5 years if the current trend away from text posts continues. The implications are staggering. Facebook is a symptom of the broader move away from typed content. Their five-year window suggests a massive shift in all aspects of on-line communication. First, file sizes alone will create exponential growth in data storage requirements. Hardware will have to be able to handle heavy streaming, and bandwidth will have to supply reliable presentation. But those are technical issues. What about the fact that video requires audio? Will we all have to retreat to headphones for all social networking, or put up with a constant background of Donald Trump sound bites? Neither sounds particularly appealing.
There are also some pretty serious implications that are not easily addressed. We can easily translate text into other languages, making content universally (with some limitations) accessible. It is hard to imagine how that will work with social video. Search engines will need to up their games - we will need to search within videos to find what we are looking for. From the perspective of e-discovery, this will require a shift in tools, processes and decision-making around relevance (is the whole video relevant if only one minute is germane) privilege and redaction, and will complicate the proof of authenticity and integrity of evidence.
There is no doubt that technology has a solution for all of this - and Wortzmans has been watching as the pace of change increases. The five-year window that Facebook has predicted is the most aggressive we have heard. If they are right, hold on – we are in for quite a transformational ride.