The Value of e-Discovery for Litigation
The arrival of e-Discovery to supplement the arduous discovery process has been a boon for litigation, however, it has been useful for a whole range of legal processes. Because e-Discovery is a category of technologies and methods, it has a broad definition. A definition from the technology sector (NetworkComputing.com) describes it as:
“…the process of classifying, collecting, preserving, reviewing and producing electronically stored information.”
Data Processing is Essential in the Current Legal Environment:
Litigation is e-Discovery’s major point of contact with the legal profession, but is not the only area of use. The same processes apply to compliance issues and even storage management.
Since any life that contacts the legal profession these days so often interacts with information processing technology, whether it be entered into a computer and uploaded, smart phoned, emailed, blogged, discussed on social media, or stored in an online account. Litigators today must be prepared to collect, order, review and share an influx of electronically stored information (ESI) often at the start of a case. The very ubiquity of ESI makes e-Discovery a central factor in cases of all sizes and types.
In fact, litigators who don’t properly handle e-Discovery are imposing on themselves a protracted and cumbersome process that’s prone to error which may be costly and may lead to federal non-compliance problems. Having strong e-Discovery strategies enable litigators to fulfill information requests as needed and provides windows into a wide range of information that can be extremely useful to the outcome of a case.
Defensive Attitudes among Lawyers:
From the beginning, lawyers have had an ambivalence toward e-Discovery, artificial intelligence and all the other powerful new developments of information processing science. There have been many perceived threats around the use of information processing in law. In 1978, a major antitrust lawsuit against CBS required that a vast number of relevant documents be provided for discovery. The lawyers for the studio examined six million documents at a cost of more than $2.2 million, much of it to pay for billable hours by lawyers and paralegals. Now, artificial intelligence driven e-Discovery software could do the analysis for less than $100,000. This means that a lot of legally trained professionals will no longer be needed. A lawyer for a major chemical company used to enlist “auditoriums of lawyers” to read documents for weeks on end. None of this is needed anymore.
The legal profession itself is experiencing an era of turbulence and transition. Lawyers have a well-known built-in self-assertion that they are human beings only and engaged in a face-to face human enterprise. Many are worried that the rush to remake the profession will shift the practice of law from a genteel profession to a business, with the loss of moral and cultural footing along the way. The American Bar Association has a defensive attitude toward computers, because of the rapid cultural shift. They declare,
“The use of AI raises ethical concerns….AI should prove to be a boon to the business of law, enabling attorneys to improve on delivery of services to clients–and not the eradication of our kind.”
The ABA has been very firm against the automated lawyer that generates legal advice based on legal case-law and precedent obtained by automated systems. They officially declare,
“… It isn’t enough that law-school-educated, bar-admitted professionals have to compete with other humans who proffer documents and offer advice without those qualifications. Now the landscape includes machines with artificial intelligence.”
The Expansion of e-Discovery:
The use of technology for discovery does not hit the American Bar Association right in the face, because at least on the surface, e-Discovery is a database function which applies advanced sorting methods to large data sets, not an application that gives advice. However, the broad definition of e-Discovery would also include sorting the law and case-law. The conflict between traditional law practice and application of machines will have to work itself out with time.
As it stands, e-Discovery has become a fast growing business with an increasing number of companies in the business of supplying e-Discovery services to legal firms, replacing their teams of junior lawyers. The global e-Discovery market is predicted to grow from $7.89 billion in 2016 to $22.62 billion over five years by 2021 for a combined annual growth rate of 23.4 percent. Part of the reason for this is that the business environment throughout the world is becoming increasingly prone to take legal action because of the increased difficulty of the business environment. The fact that many business lack awareness of the importance of e-Discovery is the major restraint to the overall growth in the market.
The e-Discovery services provide end-to-end e-Discovery support to organizations, including legal firms. The managed service format can help organizations leverage the advantage of technology set up off premises. The availability of e-Discovery potential off premises saves space, hardware, and the need for support staff.
The amount of data generated and stored electronically has been growing rapidly. The increasing stockpile of data is of the kind that is needed in legal actions. Social media communication may be the single largest contributor to the massive information storage increase. At the same time, the cost of maintaining large amounts of data has been going down, as the process of consolidating a variety of document formats has been simplified.
The Origins of e-Discovery:
In the 1980s and 1990s when small computers were in their infancy, a few lawyers working with social organizations coped with increasing need to litigate against government or major corporations by using software like “Summation (litigation support software)” and “Trial Director (courtroom management software).” The gradually growing sophistication of the software and the persistent need led to the appearance of “electronic litigators.” In the years since the mid-1990s, the growth of information storage has been accelerating, especially with the gradual assembly of “the cloud.” The technology of e-Discovery has been reaching maturity to meet the current business and legal need.