As the amount of data the typical company generates continues to grow, tools to track, manage and locate this data have become commonplace for modern organizations. Companies have the ability to readily produce stored data, and quickly -- a trend that is having a huge influence on legal information management and e-discovery, according to information governance expert Jeffrey Ritter.
In this four-part SearchCompliance webcast, Ritter discusses data management strategies to help offset rising e-discovery costs. Here in part three, he discusses the paradigm shift data management processes have undergone in recent years, and how this is influencing e-discovery tools and strategies.
Jeffrey Ritter: The next step in this program is to confront the paradigm shift and understand its implications, and the foundation it gives us for justifying e-discovery spending differently. There are two truths that I believe illustrate the paradigm shift. I've tried to summarize them here, and I think it's worth taking a few minutes to go over. The first is: The truth is out there. Some of us may remember that phrase as part of a very popular television and movie series called The X-Files. The reality of the digital world is that it is shifting our ability to find information. This is where the paradigm shift is occurring. I don't think most professionals involved with e-discovery see it, but it's a critical shift influencing how we spend money to find relevant and responsive information.
The 20th-century advocacy model was built on minimizing disclosure. Large companies would overwhelm plaintiffs with volumes of information, sending 10,000 boxes of paper to a two-person law firm, for example, or anything that would discourage the opposing council from actually finding the facts and the merits of the case. I simply do not believe that is a functional strategy that works in the 21st century. The truth is out there in the digital space, and we're able to find it at a cost ratio that makes the effort meaningful. First of all, technology-assisted review does work, and it is cost-effective. We're seeing courts increasingly recognize that the expense incurred during high volumes of data review should not be the basis of opposing production. In fact, the opposing council can get through the information at a very low cost using computer-based e-discovery tools.
E-discovery tools are amazing in their ability to identify, highlight and isolate relationships and patterns using visualization and mapping technologies.
The second thing that I think has made life particularly difficult for the 20th-century model of litigation defense is the increased probability that somewhere out there are multiple duplicates. Machines, by definition, communicate by transferring duplicate copies. As e-discovery sophistication matures, we're no longer just looking at the individual email inbox of Joe Smith, we're also looking at the archived version that's been stored, we're looking at the machines of the service provider, we're looking at the opposing companies' machines and service providers to find information. As a consequence, time and time again through this exercise, ESI artifacts -- emails, files, records -- are being located that contradict opposing council's claims that they've made good faith efforts to find relevant information. This is costing everybody a lot of money. Ultimately, the judicial process, especially in the United States, is based on the notion that both parties in litigation responsibly preserve and present the truth. To do that, they have to be able to find the information. They cannot continue to use a litigation strategy that simply denies that the information is available.
Finally, the truth is out there because council and courts are becoming increasingly competent. E-discovery strategy in the second part of the last decade was to simply play dumb and hope that the opposing council is dumber. That's no longer working. The training that's being received by the judges, the training that's being received by the council is improving, and as a result playing dumb-to-dumber is no longer an effective strategy. Detailed questions are being asked about preservation practices, archiving, metadata storage, distributed storage practices, use of third-party contractors and the presence of data in international digital stores. As a consequence, you just can no longer implement an e-discovery strategy that says, "I'll get away with not producing the responsive and relevant information."
The second truth is to recognize what's happening in e-discovery. All discovery is semantic analysis: We're looking for words, we're looking for phrases, we're looking for patterns, words and phrases that are associated with telling a history of events, actions or non-actions that are the basis of the legal inquiry. In effect, we are doing calculations based on the semantic content to determine the connectedness of content to the issues at hand. Not only are we looking for the historical information that allows us to present the history of the data, but we're also looking for the evidence that may lead to the discovery of the primary information. It's all algorithmic; it's calculations. What the TAR technologies and predictive coding are doing are simply enabling a more comprehensive, a more thorough and a more efficient identification of information artifacts that relate to the topics. We're simply moving away from a strategy in which opposing council can seek to defend its client's interest by claiming, "I don't know how to find it. There's too much out there. I am going to have to spend tens of thousands of hours reviewing all of this." In fact, the software can do the hard work for us.
More from this SearchCompliance webcast
What's been intriguing to me has been the emergence into the e-discovery market of some of the strongest technologies that have been developed in the intelligence community for algorithmic pattern analysis of content to advance national public policy. These e-discovery tools are amazing in their ability to identify, highlight and isolate relationships and patterns using visualization and mapping technologies. In doing so, they're simply making the truth accessible at a cost that makes it difficult to develop any effective strategy of denial.
Probably these two truths, once accepted, enable a company to transform the efficiency and productivity of how they find relevant ESI. In accepting these two truths, they can have a basis on which to begin to lower their cost by focusing on the previously unrecognized buckets and focusing on the spending buckets where spending is actually increasing.
What does work? Those are the five strategies that are the essence of today's presentation.