E-Discovery Tools within Reach

Litigators on a tight budget can now access electronic discovery tools for such tasks as filtering documents and culling duplicates.

Michael Pontrelli, managing director of Huron Legal in San Francisco, says Silicon Valley know-how is rubbing off on the legal community: Big firms, boutique firms, and in-house counsel in California are becoming increasingly savvy about electronic discovery.

"Lawyers are very slow to change and adopt technologies, but in the Bay Area, ... there are so many more tech-savvy in-house counsel - and outside lawyers - because of the industries they represent. They either learn it, or they get left behind," Pontrelli says. Smaller firms working on smaller budgets, however, have had difficulty keeping pace. "I go into a lot of smaller firms [to consult] and it is E-Discovery 101," Pontrelli says.

All kinds of firms can now use a variety of e-discovery technology because the prices of many tools have fallen, says electronic evidence expert Craig Ball, also a lawyer and an adjunct professor at the University of Texas. It's a far cry from 2009, when in a widely read essay he worried that e-discovery was affordable only on "big-budget cases involving big companies, handled by big firms."

"A number of tools have emerged that make it much less costly for a savvy, dedicated lawyer to sit down and, on a modest scale - a scale suited for about 80 percent of the cases in the system - do electronic discovery," Ball now says.

For less than $1,000, a firm can filter large sets of documents, perform keyword searches, and identify duplicate documents. The only aspect of e-discovery that may remain out of reach for lawyers on smaller budgets is predictive coding - technology that Ed Burke, a senior vice president at e-discovery vendor Epiq Systems, compares to the Pandora music service's system for tailoring playlists to individual customers. An attorney using predictive coding trains the software to recognize the portions of data or documents that are relevant to a case by reviewing a small sample of them - say, 10,000 out of 10 million documents.

"The software presents documents to attorneys, and the attorney hits thumbs up or thumbs down," says Burke. "The software then learns the characteristics of the documents that are useful."

The prospect of outsourcing document review to an algorithm may induce vertigo in some, but attorneys' preference for review by humans is not based on hard evidence. The National Institute of Standards and Technology research has shown that human reviewers agree on whether a document is relevant only 42 percent of the time, leading to plenty of documents being missed. Predictive coding, on the other hand, identified 81 percent of all relevant documents in a set, according to a test conducted in 2012 for a Virginia court. The fact that neither method is perfect has given lots of practitioners pause. But it's clear that predictive coding requires significantly less work by lawyers and their support staff and may be more accurate. Burke says it eventually could put smaller firms on equal footing with big law.

Anne Joseph O'Connell, a professor and associate dean at UC Berkeley law school and an expert on civil procedure, says a few recent federal rulings may broaden the reception of predictive coding. The most important was a 2013 holding that the Federal Rules of Civil Procedure don't require parties to share the sets of documents they used to train their predictive coding programs. (In re Biomet M2A Magnum Hip Implant Prod. Liab. Litig., 2013 WL 6405156 (N.D. Ind.).) Even earlier, in a hearing in a case on the validity of the residential mortgage-backed securities at the heart of the financial crisis, U.S. District Judge Denise Cote required the parties to cooperate in using the technology. "Predictive coding should be given careful consideration in a case like this," she said, "and I am absolutely happy to endorse the use of predictive coding and to require that it be used as part of the discovery tools available to the parties." (See Fed. Hous. Fin. Agency v. JPMorgan Chase & Co., Inc., No. 11 CV 6189 (S.D.N.Y. telephonic hearing, July 24, 2012).)

New Affordable Tools
But not everyone needs to spring for the very latest e-discovery technology. As little as $100 can get an attorney started with keyword searches, duplicate removal, and advanced visualization of a modest amount of electronically stored information. For example, in the same price range Proof Finder - a charitable project of the industry giant Nuix, with all proceeds going to children's education - is as powerful as much more expensive programs.

In the $1,000 range, both Intella and Digital WarRoom let a firm tackle considerably more data. Both use interfaces that resemble Microsoft Outlook and allow attorneys to search, organize, and filter large chunks of data.

And though cloud-based e-discovery technology didn't even exist five years ago, now platforms such as Nextpoint and Lexbe eDiscovery Platform eliminate the worry and cost of keeping software updated and maintaining enough storage locally.

Says Ball: "It's kind of like an automobile in the sense that cars used to be fairly expensive - and certainly if you want a sports car, they're still very expensive - but today you can buy a tidy, used two-door hatchback to get you there."

David Ferry writes from San Francisco about the law, social issues, and technology.

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Kari Santos

Daily Journal Staff Writer

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