eDiscovery in SA - Making decisions on document relevance

Sometimes the topics of my posts simply follow on from the previous one. Sometimes events in the eDiscovery industry prompt the new topic. Sometimes I am updating you on what has happened here since my last post. Sometimes people ask me to write about a particular topic. Sometimes comments or questions from lawyers that I hear when I am at meetings or events spark a new post. It is the last of these that prompts this one, based upon a comment at one meeting, and a question at an event, which, together, made me realise that there is a lack of understanding for some as to exactly what eDiscovery technology does. Maybe the message has not got through properly or maybe people such as myself have not explained it well enough so let us revisit this vital topic.

The basic premise is that no one is saying that technology replaces the need for lawyers to make decisions as to what documents are relevant for discovery, and we all need to be absolutely clear about that. Allow me to refer to the comment and question that have concerned me sufficiently to write this post. 

Firstly, at one meeting at which I was speaking, and when I was commenting upon the dangers of printing emails and electronic documents, I said that technology can find even emails and documents thought to be deleted. Obviously, such documents could well be highly relevant as whoever deleted them may have done so wilfully. The comment the lawyer made was that he might not wish them to be found and discovered as they may be privileged. I, and everyone else would understand that, but just because a “deleted” email is found does not mean that it will be discovered in the course of the proceedings! If you were looking through the desk or filing cabinet of a custodian and found a paper document hidden away does that mean it is automatically discovered whether relevant or not? Of course not. Someone, a lawyer, still needs to review that document and determine its status. It is exactly the same with electronic documents and when technology finds documents such as deleted emails they still need to be reviewed by a lawyer for determination, if the documents fit the relevance criteria in that particular case.  

Secondly, at a recent event in which I was a panellist, myself and another speaker were talking about some of the various features of eDiscovery technology such as de-duplication, email threading, keyword searching etc. and we were talking about the ability to find potentially relevant documents quickly amongst a large collection. One lawyer asked a series of questions including an enquiry as to how one could be sure that the technology had found and discovered a relevant document. As with the previous example, it is the lawyer, not the technology, that determines relevance or otherwise and the technology is simply using its powers  based upon the criteria commanded by or on behalf of the lawyers.

As I say it is clear that some of the message is not getting through so I hope it is helpful to go back to some of the basics of eDiscovery.  Beginning with volumes, a typical custodian could well have at least 15Gb of net data on his laptop or PC along with his mobile device. That could equate to approx 100,000 documents working on an average of 6500 documents per Gb. Opinions on this differ greatly across the spectrum of eDiscovery and I read recently that an annual survey in the US finds the current count to be nearer 4000 docs per Gb, with the trend over the last 5 years to be  showing a decrease year on year. Why is that you may ask? The only explanation I can offer is that  there is an ever growing use of graphics, videos, charts, photos, PowerPoints and this makes these electronic files larger thereby affecting the overall document count. However, my own experience in the UK and now, certainly, in SA is that my average of 6500 docs holds good at the moment. So, if one custodian has 100,000 documents, a typical case which has at least 5 custodians could easily have half a million documents. Do you want to print those? It could amount to 1.5m pages and you would have several reviewers so you would have to copy them several times. As you can see this is becoming silly and no clients would put up with it nor pay for it. Therefore, the only way to handle these volumes is by using technology.

If you look at some of my previous posts you will see some of the features that exist in eDiscovery solutions. We can find and set aside duplicates; filter the collection by date so that documents falling out of the appropriate range are also set aside; search the collection by keywords, again setting aside those documents that do not contain the keywords; group certain types of docs together by similarity or concept; show email threads so that reviewing decisions can be made on several documents at once; use technology assisted review or predictive coding to mirror a reviewing lawyer’s decisions across an entire collection; and many other features. The system, like all computer programmes does not do this all by itself - you have to tell it what you want it to do and what you want it to find. The system does not choose the keywords nor decide the appropriate date ranges nor select the most important custodians. It can help with all of these factors but it is the lawyers job to know enough about the case to ask the right questions and give the right instructions. I am sure I have mentioned many times in the past that I once attended a seminar in the UK when one of the panelists was a very senior High Court Judge who opened by telling the lawyers in the audience that if they did not know the key custodians, key date range and keywords in their case, then they were negligent! It follows, doesn’t it, that once the lawyers have decided upon these factors then the decisions can be fed to the system either by the law firm or service provider and this large initial collection in my example of 500,000 documents will be massively reduced. What is left can then be reviewed by the legal team and decisions made about relevance and privilege, resulting in a final amount of documents to discover. It is not just about discovery either. What is found could well promote a settlement and as I have said many times if you settle you must do so from a position of strength and knowing what data and documents you have, will provide that strength. Similarly, if the matter is not litigation, but an investigation, arbitration, or competition case you have to know what you have quickly, efficiently and cost effectively. More, eDiscovery technology maintains an audit trail on every document and action taken which can be invaluable from a defensibility standpoint.

What we are saying here is that lawyers do not have to, and I contend must not, look at every single document to satisfy their obligations to their client or the court. They only need to look at those documents which require their specific expertise - the system will have eliminated all those documents which do not require the eyes of the lawyer. This is the 21st century and electronic documents account for well over 90% of all business documents. Companies have changed the manner in which they do business and communicate and so must lawyers change the way in which they deal with these cases. It requires different thinking than before in the way a lawyer scopes a case with his clients and then applies modern technology to achieve the correct results. Take a look at the latest book by Professor Richard Susskind entitled “Tomorrow’s lawyers: an introduction to your future”. Change your thinking and embrace technology. This is what your clients want and expect, and few will pay for you to spend hours looking at irrelevant documents when it is not necessary. 

So, reverting to the title of this post, technology does not decide on relevance, privilege etc. only lawyers do that, but technology helps to find those documents quicker and in a less expensive and more reliable manner than the old way. Think smart, work smart and you will be surprised at the results.