Let’s face it, today we’re living in a world of “big data” and bigger data. Like it or not, the world is now data driven, fueled by an ever-evolving variety of data sources. For the most part, we’ve become inured to it — “big data” is just part of the social vocabulary now. We’ve become accustomed to the bullseye sales focus of ads that pop up during our online browsing and often prefer to remain oblivious to the manipulation of personal data that takes place behind the scenes.
Big data: The two-headed beast.
That’s not to say we reap no benefits, either personally or in the corporate enterprise. Big data (often conflated with big data analytics) certainly allow both individuals and organizations to achieve remarkable cost savings, engage in more accurate decision-making, and drive product development and consumption more precisely tailored to our needs.
But there are costs. With the volume of data out there, we worry about invasion of privacy and identity theft. In the enterprise, exploding data volumes upon which big data analytics rest demand constant and costly care and feeding. Compliance concerns abound. Cybersecurity, data privacy and IP threats have now ascended to the top of the corporate risk list. And right along with them are the big data risks related to litigation.
This isn’t news to litigators. For both in-house and outside counsel, “big data” is a beast looming large. In corporate litigation, it comprises the world of eDiscovery, a laborious and costly process requiring ongoing negotiation, carrying with it risks incurred by poor execution. More importantly, buried somewhere within that big data pile lie the fact patterns and evidence waiting to be found that can make or break a matter. Finding it is very hard.
Yet, with all of that hanging in the balance, some in the legal realm have been painfully slow to adapt to new technologies and change certain practices in eDiscovery, clinging instead to paper paradigms of discovery and document review. For them, the collision between big data and litigation could be very loud, indeed.
Why it matters that documents are now data.
If you contrast today’s big data world to a paper one, the differences are obvious. For one thing, the data world is larger, rife with both variety and duplication. Plus, there is always the data about the data—metadata—to consider, with myriad data values; dates, times, histories, people who’ve touched the document, tracked changes, hidden comments and formulas, all comprising evidence as real as the content itself. And, of course, there is all that other digital information to consider—audio, video, text messages, digital voice mail, and so on that don’t exist in the paper world.
Luckily, when you have data, you can use technology and apply data analytics to slice and dice it, enabling all kinds of investigatory activities precluded in the paper world. For example, in addition to the eDiscovery advantages of data, such as de-duplication, email threading and various forms of culling, there are also matter preparation advantages: in the right hands, data analytics combined with linguistic expertise can provide things like:
- Fact chronology support: The correlation of subject matter to dates to strengthen and fill gaps in the fact chronology.
- Sentiment analysis: Identification of emotionally-charged communications, such as aggression, anger, concern, confusion. Sentiment analysis can even uncover attempts to conceal information.
- Production gap and trend analysis: Identification of patterns of underproduction of email or unexpected trends during critical timeframes.
- Witness finder analysis: Identification of custodians linked to relevant documents, which also facilitates the identification of previously unknown witnesses.
- Witness impeachment analysis: Identification of witness vulnerabilities via rapid identification of documents that undermine witness credibility.
- User ID association: Identification of critical links between individuals and documents they created or received using instant message IDs, personal email, or email distribution lists.
Big data and the responsibilities of counsel.
As big data grows, counsel’s seat, already hot, is getting hotter. As technology use increases, so do ethical demands from legal associations and the bench requiring counsel to step up their technological expertise. It’s a pretty steep learning curve to try to understand data sources, technologies and their eDiscovery implications while trying to practice law, but nonetheless, it’s now a responsibility.
Despite the efforts to limit the scope of discovery with proportionality considerations (see the recent amendment to Rule 26(b)), it’s still a process riddled with complexities. The bigger big data gets, the harder it is to manage and the more difficult it is to find the information that matters, especially if linear document review is still the method of choice. What can be done? How can counsel be ready when big data and litigation collide?
Avoiding the crash: staying ahead of the big data game.
For one thing, remember the old scouting adage: be prepared. It won’t help to be blindsided by unanticipated data considerations. But more importantly, understand that when information is data, not documents, it’s a new playing field. The old paper paradigm of linear document review is ineffective when everything is really a big data pile. A few simple activities can help:
- Understand your client’s data landscape. A data map, or even just a general sense of enterprise data platforms and assets can help anchor legal hold and eDiscovery considerations. If possible, try to get a handle on your client’s policies and procedures surrounding email, social media, mobile devices, data storage, and other activities that can contribute to their data assets in a significant way. Understand policies for data retention, including the deletion of data they are no longer legally required to store. While you may not fully understand the scope or the depth of corporate data assets, you can at least understand where data comes from, where it is stored, and how it is used by the enterprise.
- Forge relationships with corporate IT. Often, what seem like data and technology hurdles are actually communication issues. Establishing relationships with folks who are likely to know more than you do can be an effective way to find out what you don’t know; they can help you fill in the gaps. This may include individuals who work in dedicated data governance roles, network infrastructure, IT policy, or other roles related to the creation, storage, and disposal of data assets. Ultimately, these on-staff subject matter experts know a great deal more about your client’s data than you do. They’re close to the processes that dictate how data moves throughout the client’s enterprise. Ideally, they can work to help you quickly understand the scope of the data assets that can matter in litigation.
- Keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology (the ethical imperative). Technological tools to process and review data post-collection are rapidly changing. Data reduction and culling tools, especially, can help from the beginning by identifying duplicates and responsive or unresponsive information. The smaller the review set, the lower the cost. Predictive coding tools for relevance ranking are being offered by a growing number of providers, either as software for purchase or as a service.
- Leverage available expertise. Lawyers know the value of expertise; they make their living by it. Technology used in the legal realm—especially for eDiscovery and technology-assisted review of big data —is complex. It requires the input and analyses of those who are experts in particular aspects of the field. For litigators to dedicate themselves to learning the latest technologies and techniques in-depth isn’t necessarily the most effective plan. Best practices change rapidly, and you may find that the state-of-the-art you learn today is obsolete tomorrow.Find experts you can trust and work with them to sharpen your awareness and raise your level of knowledge. eDiscovery experts can assist with sampling protocols that can efficiently assess your client’s data. Experts can also aid in the development of a proportionality plan and provide recommendations on how you can negotiate your findings during the meet-and-confer stage of litigation. There are also managed service providers who use experts and advanced technologies for responsive review and can locate key documents using proprietary methodologies.
The bottom line.
Big data and litigation will most certainly collide, but it needn’t be the big bang. Counsel who are able to adapt to the times, leave old paper paradigms behind and take preparedness seriously will surely find that these precautions will lead to a much softer landing.