Bloomberg Law
Feb. 11, 2016, 4:12 PM UTC

Perspective: The e-Discovery Consumption Gap, Laggards and Innovation

By Dean Gonsowski, Vice President of Business Development, kCura

Today’s corporate counsel are facing constant pressure to reduce costs. This trend is getting more challenging due to exponential data growth. IDC’s Digital Universe study predicts the world’s data will amount to 44 zettabytes by 2020, which will have a significant impact on the compliance and e-Discovery needs of organizations on a global scale. Following that trend, the largest cases inRelativity, kCura’s e-discovery software, have grown by nearly four times as many documents in the last 12 months alone.

Conspicuous Consumption Gap

During the last couple of decades consumers haven’t been utilizing the technological advancements to their full potential. Just look at your mobile phone and think how many actual apps you are using on a daily basis — it’s probably around 10 percent, and even those 10 percent are likely not fully exploited.

Lately, technology has been innovating way ahead of demand in some markets, and this applies to the e-Discovery market as well. As a result, there is a conspicuous “consumption gap” in legal technology, which emerges from the difference in the current use of technology versus its capabilities.

A recent survey commissioned by the Coalition of Technology Resources for Lawyers (CTRL) helped illustrate this contrast and provides a snapshot of what in-house counsel see on the horizon for the consumption of legal technology, with a particular focus on analytics. According to the survey’s findings, 93 percent believe analytics will be critical to the practice of law over the next decade, but near-term adoption is only a small fraction of that right now.

Silver Bullet

Several years ago the Rand Institute of Civil Justice conducted a study about litigant expenditures in e-discovery , where it found that corporations spend eight percent of their discovery costs on collection, 19 percent on processing, and 73 percent on review. By applying existing technologies, especially analytics, corporations could start driving greater savings across the entirety of the e-discovery . For example, if in-house counsel set out to save 10 percent on total e-discovery costs, they could reach their goal by improving review costs by only 13 percent.

The report suggests that the increasing volume of digital records makes predictive coding and other computer-assisted review techniques not only a cost-effective option to help conduct review, but the only reasonable way to handle large-scale production.

From my experience, most see this type of machine learning as an obvious way to increase efficiencies in the review process, but sadly any number of factors have limited adoption. A 2015 PC –TAR Focus Report prepared by the eDJ Group noted that counsel and management usually resist technology-assisted review (TAR) due to their limited knowledge of software capabilities, limitations, potential costs and applications.

The Power of Analytics

In 2012, North American brewers Anheuser-Busch InBev and Grupo Modelo announced a proposed merger that would combine two of the largest beer suppliers in the world. The law firm McDermott, Will & Emery oversaw aspects of the merger. The deal was stalled by requests for information by the U.S. Department of Justice (DOJ), which was tasked with determining whether the merger would give too much market-share to a single entity. The DOJ’s second request left the merging parties with just over two months to sift through millions of documents and begin producing information.

TAR had been an important tool in McDermott’s arsenal for some time. Their case team had recently used it on a related matter, and several members of the McDermott team had already begun discussing the technology with the U.S. DOJ. The DOJ’s team recognized that TAR could mean smaller productions with better quality information, and in a shorter time frame.

McDermott and the U.S. DOJ held regular calls to establish a favorable methodology for the case. Early culling nearly halved the original data volume, but still left well over a million documents to be reviewed. With an agreed-upon protocol in place, the McDermott team was able to start on the case quickly. This technology-enhanced approach allowed the client to achieve the rare triumvirate of “fast, cheap, and good” — of which most only get two of three.

The Future

Novelist William Gibson said: “The future is already here — it’s just not very evenly distributed.” This is certainly the way for emerging analytical technologies like technology-assisted review. Early adopters are using it now without too much fanfare, and even the masses agree these technologies will be a large part of how attorneys practice in the future. The only remaining question is how soon practitioners cross the chasm and start embracing these technologies in the near term. Given how impactful they can be in terms of case results and cost savings, being a laggard here is certainly fraught with risk.

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