Why Technology Assisted Review will Redefine eDiscovery

by Greg Behan, Esq.

“Once a new technology rolls over you, if you’re not part of the steamroller, you’re part of the road.”                        
-Stewart Brand-

The information substructure of society—the way information is captured, shared, and communicated[i]—is evolving at an exponential rate and most institutions are not prepared to adapt to this rate of change.   Realistically, who can blame them when the annual data volume generated by U.S. corporations is enough material to fill 10,000 Libraries of Congress?[ii]   Just to put that statistic into perspective, the Library of Congress is the largest library in the world and contains 838 miles of bookshelves.[iii]

Greg Behan and Steward BrandGenerally, Moore’s Law describes how the processing power of hardware has exponentially increased every 18 months since the creation of the integrated circuit in 1958.[i]  However, only recently have technologies evolved that enable us to make sense of the huge data volumes generated by this processing power without the necessity of hiring armies of human beings to manually review and categorize this information.   Richard Susskind describes this phenomenon as Technology Lag, the difference between data processing and knowledge processing – the ability to make and move data vs. the ability to analyze and interpret it.[ii]

(Image Caption: The opportunity of a lifetime: meeting Stewart Brand, renown futurist, editor of The Whole Earth Catalog, and founder of the Long Now FoundationGlobal Business Network, and The Well.)

The data revolution in the legal industry is barely getting started, and already the Technology Lag is rapidly shrinking.  Technology has disrupted nearly every industry, making many professions obsolete (think travel agents, telephone operators, and photographic lab technicians), and lawyers are not immune to this disruption.  I’m a member of Generation X and even though I owned a computer when I started my first job as an Assistant Prosecutor, I was handed a Dictaphone (yes, I know) by an older colleague to dictate motions for transcription.  

After I stopped practicing criminal law, I moved to Washington, D.C. and began working on large document reviews, some with hundreds of lawyers per case.  As the review technology improved, and the technicians implementing it began to unlock the functionality of the software, the giant rooms filled with lawyers coding documents began to shrink.  Within a few years a review project that once needed 400 lawyers could be performed with the labor of only 50.   Today, the same type of complex project requires just a handful of lawyers/Subject Matter Experts (SMEs) and a sharp technician that understands and can leverage the power of the software.   At this rate of advancement, what might we expect just a few short years from now?

Technology Assisted Review (TAR) will redefine the rules of discovery, the law firm business model, and even the nature of evidence itself in ways we will be unable to predict.  While this technology has been around for several years, demand for it is starting to grow and soon we will see more cases related to its use and implementation. Lawyers are wired to rely on the past for guidance in the formulation of legal arguments based on precedent.  This mentality can be limiting because there are no legal insights from the past that are capable of accommodating the emergence of machine / human legal determinations. This is uncharted territory and we are likely to see the momentum for adoption oscillate between skepticism and acceptance.   Ultimately, the technology will be adopted widely and the firms who get there first will have an advantage with their clients in the 21st century legal market.  

So, ask yourself this – are you familiar with these terms:  Probability Theory, Statistical Sampling, Overturns, and Feedback mechanisms?  If not, you may be “part of the road”

[1] Susskin, Richard. The End of Lawyers, Rethinking the Nature of Legal Services. Oxford: Oxford University Press, 2008. Digital print.

[1] http://events.sap.com/sapphirenow/en/session/2310

[1] http://www.loc.gov/about/facts.html

[1] http://en.wikipedia.org/wiki/Moore’s_law

[1] Susskin, Richard. The End of Lawyers, Rethinking the Nature of Legal Services. Oxford: Oxford University Press, 2008. Digital print.

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