Recently, John Markoff of the New York Times reported on the effects that new e-discovery technology is having on law firms and legal practice in “Armies of Expensive Lawyers, Replaced by Cheaper Software.” The article references a pre-e-discovery case from 1978 in which six million documents were reviewed, costing over $2.2 million, largely “…to pay for a platoon of lawyers and paralegals who worked for months at high hourly rates.” Fast forward to 2011 and e-discovery technology is deeply entrenched into law practice, changing the face of litigation.
In October of 2003, the article notes, Andrew McCallum, a computer scientist, bought a copy of a large database of emails, the Enron Corpus, and released it to researchers for technological testing. The resultant technology allows for one lawyer’s work “…to suffice for work that once required 500,” according to Mike Lynch, founder of Autonomy. Markoff also notes, “…’e-discovery’ software can analyze documents in a fraction of the time for a fraction of the cost.” This speed is due in large part to new technology for document analysis such as concept search. The process of keyword filtering has now become much more effective, as concept search technology can find relevant documents “…even in the absence of specific terms, and deduce patterns of behavior that would have eluded lawyers examining millions of documents.” Technology allows relevant documents to be found without the reviewer even knowing all of the keywords.
Another benefit of using technology for document reviews is stamina. “People get bored,” Markoff writes, “people get headaches. Computers don’t.” Hours spent compiling keyword lists & searching for missed documents can add up. With concept search doing the legwork, reviewers will be less fatigued when actual review commences.
Other technological advances allow for analyzing documents based on chains of events and what Markoff calls “digital anomalies.” Using e-discovery technology to locate these anomalies shows lawyers “…incidents when an employee decides to hide a particular action by having a private conversation…usually [involving] switching media.” These lost moments of evidence can be crucial to a case. Some technology can even detect changes in an e-mail writer’s tone.
Although this technology makes review more efficient and the volume of data more manageable, it does not eliminate the need for review. Furthermore, while I agree that technological advances make the litigation process more efficient (such as the use of clustering tools like Liquid Lit Manager’s); it’s important to remember that these are just that—tools to help lawyers identify relevant documents. Attorneys are still an integral part of the process. As researchers continue to analyze the Enron Corpus, we can expect for e-discovery technology to become even more indispensable and intelligent. As Markoff notes, “We’re at the beginning of a10-year period where we’re going to transition from computers that can’t understand language to a point where computers can understand quite a bit about language.”