ESI Discovery: Working in a World of Exploding Data

Being an e-discovery consultant specializing in IP litigation, I hear “an explosion of ESI” as often as Bob Barker heard “come on down” on the Price is Right. I am based in San Francisco so sitting at any lunch table in the city, you can hear a one-up between colleagues on how much data one case was over another as if each new custodian collected was a fresh war wound to brag about. What you will also hear is how expensive a voluminous case is to try, simply because of the sheer volume of data. We are now entering into the realm of petabytes and for those of you unfamiliar, this is not a term coined from Star Trek but rather a real number of gb’s; 1,048,676 gb’s in 1 petabyte to be exact. I would do the math on the number of pages this equates to but my iPhone calculator won’t go that high.

esi-discoveryCollection, review and production costs are a couple of factors as to why a large document case is so expensive.  In an effort to manage the burdens of reviewing the massive quantities of ESI the current electronic age has created, e-discovery vendors are turning to predictive analytics.  A software-based process, predictive analytics simplifies the steps necessary to compile electronic documents, including organization, coding and prioritization.  The software bases decisions on the relation of documents to outstanding discovery requests, as well as determining privilege status and other issues related to the case.  What makes predictive analytics especially beneficial is the ability to use the process not only for document production, but for documents produced by the opposition as well.  The result is an accurate document review that is cost-effective and quickly expedited. However, I am often met with resistance when pitching the technology to attorneys because predictive analytics has been without judicial approval and no one wants to be the first  on the dance floor. However, Judge Peck recently ruled in a landmark decision “the first in which a Court has approved of the use of computer-assisted review.” Judge Peck made the point that leaves no ambiguity:

“Counsel no longer have to worry about being the “first” or “guinea pig” for judicial acceptance of computer-assisted review. As with keywords or any other technological solution to ediscovery, counsel must design an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant ESI while adhering to Rule 1 and Rule 26(b )(2)(C) proportionality. Computer-assisted review now can be considered judicially-approved for use in appropriate cases.”

With this new decision regarding predictive analytics under my belt, I eagerly reached out to clients to see what the thoughts were of this as a cost savings measure.  And the overwhelming majority said “Great to know but I am not sure when to use it”. Touché…so let’s back up a moment.  As with many early case assessment tools and other technologies, it is important to note that not one size fits all so working with an experienced e-discovery vendor to design workflow that is tailored to your data and case, is the golden ticket to success.   I do not believe that predictive analytics is a fit for every case but when it is deployed on the right case, we have seen tangible results of accelerated review using the iterative process by as much as 50-100%.  I have never been accused of being a math genius, but any ROI calculator will like “double speed, and half the cost.”  This can result in a savings of hundreds of thousands of dollars in review costs on a single matter.  Don’t fret, human review is still required but by “batching” out a categorization of documents, it will optimize the review which results in higher accuracy and efficiently ratings.

Albert Einstein once said, “Technological progress is like an axe in the hands of a pathological criminal.” Since my rap sheet is clear and I wish for it remain that way, I think we can proceed with an open mind that such success with new technology can be used to help us wrangle the giant bear that is ESI but it does require the right case, a controlled work-flow and a bear keeper.

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