Recently, I watched a TED Talk by Erik Brynjolfsson: The Key to Growth? Race with the Machines. Although it was a broad discussion on the history of growth in technology and machine learning, it hit a point that is relevant to the issues that we face in the legal industry. Data volumes in any given organization continue to grow at an exponential rate and likely will continue to do so beyond our lifetimes. The impact of this growth is crippling efforts to find relevant data by deploying the archaic linear mindset/model to approach the review.
We have TAR and variations of analytics that help address and organize the data for review, but we are still reviewing in case-by-case silos rather than using methodologies that can leverage the collective intellectual energy spent on all cases by any given organization. Some corporations are addressing all of their matters by working with technology to deploy better strategies, but they are currently few and far between.
Current Industry Standards
Without a doubt, we work in an industry with brilliant people, technology and processes. The arguably unintended disconnection between legal departments and legal service providers creates walls that at times partition these brilliant people from each other. This is a challenge that seems to perpetuate the case-by-case reactive mode the discovery machine creates. Let me illustrate what I mean by quickly looking at a general litigation life cycle.
The Exponential Equation
As Brynjolfsson mentioned in his talk, the Big Data growth trajectory creates a surprise for our industry, and we are scrambling to solve it. Data will continue to grow at an exponential rate (N x N x N), instead of incrementally (N + 1 + 1). Our current mindset perpetuates a pushback from using technology to solve growing legal discovery data amounts while preserving the business model of attorney review hours. I believe this is why the discussion around AFA in corporate RFPs is starting to really have traction among the tier 1 law firms.
The size of data is growing per matter across the board, but a general trend still seems to be settling early because of the cost of review, eDiscovery and/or analytics for smarter review. This is bad for all business lines, but can be normal in many cases involving a lower economic claim compared to the expense of litigating. Ralph Losey expands on this issue, and it makes sense to conclude that there can be strategies that involve discovery in a way that allows the use of technology to make nearly all cases involving ESI. This lets corporations discover, defend and make decisions to settle or litigate on the merits of the case rather than economics.
Additionally, it should be fair to argue if the strategy from the defending corporation was to leverage collective case intelligence through the aggregation of all cases for a federated search across all matters. This is a growing trend where corporations prone to regular defensive litigation could settle or litigate based off of their empirical case decisions. This is only possible if they are collecting most all data across custodians and leveraging analytics to cluster the concepts rather than keyword filtering before review.
Rick started in the legal industry in 2002 working for a litigation support company where he began consulting with law firms on paper and electronic discovery. As eDiscovery began to grow, his path took him to deploying software in data processing and forensics. In 2006, he became a co-founder of Wave Software for high volume unstructured data culling for a more streamlined review. The company quickly grew in the emerging eDiscovery market and as a result, he co-founded The Masters Conference to bring thought leaders together for education on the evolving best legal practices. In 2012, he began working in the complex data/document review with iCONECT and began to consult with corporations, the federal government and law firms in complex review. Rick joined TCDI in 2014.
Rick has a Communications degree in Journalism from Liberty University.
Latest posts by Rick Clark (see all)
- Ready to Relax in Style at LTNY17 - January 23, 2017
- Podcast with Ari Kaplan – Reinventing Review for Small and Mid-Sized Firms - October 20, 2016
- What to look for in an eDiscovery SaaS provider - July 18, 2016