Famous last words said by many an attorney in today’s technology-laden litigation field. There was a time, (cue nostalgic flashback music), when the largest matters would consist of a few hundred boxes of paper. Today, the sky’s the limit when it comes to the amount of records that can exist in a single case.
When the information age started spilling over into the legal profession, there were few, if any, technical solutions to the technology problem we were all facing. When a client inbox needed to be collected and reviewed for discovery, we did just that: “print it all out.” It did not take long before the very same approach would just about fill the Grand Canyon with dead trees.
As the amount of information being created by our business clients continued to grow, the technology designed to combat the problem got better and faster. Innovation came fast and hard over the next few years, resulting in the birth of eDiscovery.
Today, we find ourselves firmly in the adolescence of industry growth, with more specialists, uniform standards and best practices. The software solutions continue to advance at a trailblazing pace and, at times, even claim to be smarter than we humans. However, keeping up with this technology can be (and often is), a job in and of itself.
So, how are those tasked with supporting the efforts inside of a law firm supposed to keep pace? More importantly, assuming you can keep pace, how do you fight the “just print it out” mentality that exists in virtually all firms across the land? A recent study was conducted that concluded that there is “a profound lack of technological savvy among law firms.” 
The most impressive advancements over the last couple of years have surrounded buzzwords like predictive coding and advanced analytics. In a nutshell, these are specialized software tools designed to speed up the pace of review to eliminate as much hourly billable labor as possible during the discovery process. One major caveat is, that if leveraged improperly, one can find herself in a pretty hairy situation. Thus, giving credence to the statement that technology is only as good as those using it . This is no real secret and has played into the trepidation within law firms to hurry up and wait to see how other firms have implemented these new solutions.
The mission of this article is to provide an oversimplified how-to primer on leveraging one (of many), advanced analytical tools as a quality control measure prior to final document production, as opposed to an alternative review methodology. In other words, there’s no need to change the way that you’re currently managing and reviewing discovery documents. This will show you (and your reluctant attorney), how to dip your toe into the shallow end of the fancy whiz-bang tech world by taking the advanced out of advanced analytics.
Let’s assume that your firm has been engaged by your client to represent them in a bet the company type litigation that involves the collection, hosting, and review of a quarter-million documents. For the sake of simplicity, let’s assume all of the documents in question are emails (and their attachments), from 10 key players within the company over a time frame of five years. Your firm has already gone through the process of:
- selecting a vendor to assist with collecting the email data in a forensically sound manner;
- converting the records into a easily reviewable format;
- culling them down using basic filters; and
- hosting them in a web-based review platform that your attorneys can access from anywhere.
At this stage, the common practice is to have a war-room of contract attorneys conduct the first-pass review of these records for responsiveness and to identify any potentially privileged documents. Typically, after varied levels of quality assurance checks, what results is then produced to opposing counsel. This is a tried and true approach that has become its own industry since the economic downturn a few years ago.
The courts, unfortunately, have given very little leeway in terms of providing realistic deadlines for production, even though the amount of data keeps growing at a break-back pace. Some courts have even started imposing sanctions for consistently missing production deadlines.  As a result, the directive handed down in these scenarios is always that of speed. Review more documents in less time. In turn, being that we’re all human, this has led to a number of errors. The worst among them is producing a privileged document because it was improperly tagged. This can have some serious ramifications, because it is not just the document that is privileged, but also the entirety of its content. There are countless horror stories and case studies specifically dealing with the aftermath of this particular scenario. However, for the purposes of this example, we’ll take a look at one way to prevent this from happening by utilizing “Email Thread Analysis.”
Many service providers, due to the slow adoption of advanced and predictive technologies, have started offering these services at little to no additional cost. It should not take you long to find one amongst your existing approved vendor list that would jump at the opportunity to show off their wares.
In this scenario, let’s assume that you and I are two of ten key custodians in question. We both work in the research and development division of a successful tech startup company. I sent you an email back in 2006 that contains information about the project that we’re working on together. Within the body of this email, I make reference to a number of topics that would be considered trade secrets, deeming the record privileged under the parties’ agreement. You respond back the following day with all of the original text from my email in the body of your email. This continues back and forth over the next six weeks, totaling five emails before the email chain stops.
During a traditional linear review, each email within the thread would exist as its own record and designated to a batch to which a contract reviewer would be assigned. Let’s assume that three of the five emails were assigned to one reviewer, and the other two were assigned to another. During the review, these records typically do not get grouped together for side-by-side comparison. Being that all of the content in the original message that made the document privileged also exists in every other email in the thread, it is safe to assume that every email in the conversation should be flagged as privileged. Due to the review being conducted in such a manner, it is not uncommon for one of these emails to slip through the cracks.
The simple solution in this case is to ask your provider run a simple report leveraging email thread analysis technology to identify all anomalies of this nature. In return, you’ll have a list of every single document that is about to be produced that would otherwise contain privileged information. The screen shot below illustrates an example using a five email reply chain.
The first branch in this tree shows the originating email in this conversation flagged as privileged. You can tell this by the red circle indicator to the left of the subject line. The second email, or first reply, is also flagged as privileged. As soon as we get to the third email, we see the green tag indicating that this record was flagged as responsive. As you can see, all subsequent emails have been flagged as privileged.
A well-versed provider with the access to the right tools can automate the process of identifying every record that has been tagged within a conversation in contradiction with others. Usually, you would have someone put an extra pair of eyes on the record in question, along with the surrounding communication to verify that this was not in error.
While this is not an end-all be-all solution to be leveraged across all matters, it is one of many weapons that you should have in your arsenal to prevent potentially costly and embarrassing missteps. Your attorneys will not have to learn anything new, and when asked how you magically found this document, you can say “I used advanced analytics”.
Kris Wasserman is a Sales Engineer and passionate technology evangelist with over 10 years of experience working hands-on with litigators, in-house counsel, and litigation support professionals in the face of complex ESI-laden matters and regulatory investigations as an eDiscovery Project Manager. He serves as one of many subject matter experts at Superior Discovery in New York City, providing technical sales support to the business development team. Kris has recently begun providing monthly educational seminars for attorneys and legal support staff for the sole purpose of streamlining the adoption of the latest technology solutions in a client-specific and practical manner. For more information contact Kris at KWasserman@SuperiorDiscovery.com or follow him on Twitter @KrisWasserman.
 ILTA’s 2013 Technology Survey http://www.iltanet.org/MainMenuCategory/Publications/WhitePapersandSurveys/2013-Tech-Survey.html
 Does Technology Leap While Law Creeps? http://abovethelaw.com/2014/02/does-technology-leap-while-law-creeps/
 EDI-Oracle Study: Humans Are Still Essential in E-Discovery http://www.lawtechnologynews.com/id=1202628778400/EDI-Oracle-Study%3A-Humans-Are-Still-Essential-in-E-Discovery
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This article was featured in “The Paralegal Today” magazine on May 1st, 2014.
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