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Predictive Coding. Conceptual Clustering. Visual Analysis. Computers that can win on Jeopardy. New technologies related to the review of electronic information are being announced almost daily. It seems from the hype that we will soon have a “press here” button that will give a lawyer all of the relevant documents without any work.
Reality Check: while all of these technologies help to wade through the continually growing volume of electronic information, they are really only options which must be considered by those charged with the management of large volumes of electronic data. Leading edge technology is not for everyone, nor for every case. Even where its application will reduce costs and effort, there must be a balance struck between technology and human resources. Introducing new technology into any process is fraught with uncertainty. To alleviate some of this uncertainty and ensure that the proper tool is selected for each job, Wortzman Nickle systematically analyses new and existing technological tools that assist in large volume document reviews. We know what technology will provide real benefit in any given situation, and will actually assist, rather than deter, human reviewers to get the job done faster, more accurately, and cost effectively. Whatever role technology plays in any litigation search, and however sophisticated it becomes, human review will always retain a place alongside the technology as a way of getting quickly and efficiently to the document set that matters. If we leave aside those who sensibly and genuinely see the need to consider all possible ways of handling documents efficiently, there are growing external pressures on the rest to do so; they include increasingly active management by judges, competition with others for client business and, in some cases, mere survival as a litigation practice. If you have any questions concerning litigation technology, reach out to Wortzman Nickle for help. While the U.S. Federal Rules of Procedure (amended in 2006) provide meaningful guidance to parties and their counsel in federal court, e-discovery rules at the state level, described as “underdeveloped and uneven” have left lawyers “lost” in the area of e-discovery.
The New York State Bar Association has come to the rescue with comprehensive, practical e-discovery guidelines. These 14 guidelines, among the first of their kind at the state level, were designed to assist counsel in navigating the complex world of electronically stored information, and to prevent inadvertent spoliation. The guidelines place considerable emphasis on preservation and legal holds. Given the number of spoliation cases in the state, perhaps this focus is understandable. Other aspects covered include the reduction of e-discovery costs through appropriate retention and collection strategies, and the importance of counsel understanding their client’s technology. Notably, there is a significant focus throughout the guidelines on the use of electronic tools, and counsel’s responsibility to understand and utilize technology. While these guidelines do not deviate from known best practices for discovery, they are written in plain English and are very practical. Notwithstanding different rules of procedure in Canada, they have utility for Canadian lawyers as well. We will watch with interest as decisions emerge under these new guidelines. The process of preserving, collecting, reviewing, and producing records is imperfect. Until all information is solely electronic and is automatically classified when created, it always will be.
Theoretically, considering that upwards of 98% of all information is electronic, it should be possible to find each and every relevant record. However, the ever-increasing volume of digital data continues to outpace our ability to efficiently and accurately deal with this information. The reality of limited time and money demands that parties compromise and accept discovery imperfection. The problem is well documented: The amount of information subject to discovery in litigation continues to grow at almost unfathomable rates as individuals and corporations generate staggering volumes of information. In 2010, approximately 32 billion non-spam e-mails were sent every day — as compared with the 171 billion pieces of mail delivered by the U.S. Postal Service during all of 2010. In addition, social media posts, status updates, tweets, and blogs, produced from data sources such pads, pods, and clouds, all contribute to this ever increasing mass of information. The time, burden, and costs associated with identifying and producing relevant records from mountains of information is swamping traditional discovery budgets and holding litigants in an expensive dilemma. Further complicating matters, this problem is expected to be solved in the same amount of time it took to produce documents back in the paper days. There have been many methods developed over the years to “perfect” the e-Discovery process, such as custodian-directed collection, iterative search terms, early case-assessment, visualization, concept clustering and the newest kid on the block, predictive coding. Each of these methods has its own benefits and risks, but none produce a perfect result. No matter how reasonable the efforts, how cooperative counsel are, or how advanced the technology is, litigants must understand that some documents will be withheld that are not privileged, some privileged documents may get produced, and some relevant documents may never see the light of day. This is not a new problem. When paper files ruled the world, the challenge was finding critical documents that existed only within a multitude of storage boxes in some dusty warehouse. Today, the problem is almost the reverse: the chance of any single document getting lost is very small. However, having all that digital information at hand results in documents getting lost in plain sight. Since we cannot locate, collect, and produce every relevant piece of information, what should we do? Our ethical obligations are no different than they were during the days of paper discovery. Somehow, we need to balance the requirement to produce all relevant information against the practical problems of time and expense. There are no checklists or guidelines that lead to the perfect solution. The best way to manage these imperfections is to admit they exist, take reasonable steps to reduce them, and protect clients against them by seeking agreements that address the inevitable errors. The more transparent this process is, the more likely the parties and the courts can reach reasonable solutions. Maybe someday computers will be wise enough to save us all from ourselves, but in the mean time, the issues associated with filtering down huge amounts of information to manageable pieces will require technical know-how, foresight, cooperation and patience. |
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September 2021
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