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eDiscovery: A Source of Thrills and Reduced Costs?

When I hear the phrase “eDiscovery”, I don’t get chills. I suppose some folks do. I read after dinner last night (February 1, 2013) “Letter From LegalTech: The Thrills of E-Discovery.” The author addresses the use of search and content processing technology to figure out which documents are most germane to a legal matter. Once the subset has been identified, eDiscovery provides outputs which “real” attorneys (whether in Bangalore or Binghamton) can use to develop their “logical” arguments.

A happy quack to

One interesting factoid bumps into my rather sharp assessment of the “size” of the enterprise search market generated by an azure chip out. The number was about $1.5 billion. In the eDiscovery write up, the author says:

Nobody seems to know how large the e-discovery market is — estimates range from 1.2 to 2.8 billion dollars — but everyone agree it’s not going anywhere. We’re never going back to sorting through those boxes of documents in that proverbial warehouse.

I like the categorical affirmative “nobody.” The point is that sizing any of the search and content processing markets is pretty much like asking Bernie Madoff type professionals, “How much in liquid assets do you have?” The answer is situational, enhanced by marketing, and believed without a moment’s hesitation.

I know the eDiscovery market is out there because I get lots of PR spam about various breakthroughs, revolutions, and inventions which promise to revolutionize figuring out which email will help a legal eagle win a case with his or her “logical” argument. I wanted to use the word “rational” in the manner of John Ralston Saul, but the rational attorneys are leaving the field and looking for work as novelists, bloggers, and fast food workers.

One company—an outfit called Catalyst Repository Systems—flooded me with PR email spam about its products. I called the company on January 31, 2013. I was treated in an offhand, suspicious manner by a tense, somewhat defensive young man named Mark, Monk, Matt, or Mump. At age 69, I have a tough time figuring out Denver accents. Mark, Monk, Matt, or Mump took my name and phone number. He assured me that his boss would call me back to answer my questions about PR spam and the product which struck me as a “me too.” I did learn that he had six years of marketing experience and that he just “push the send button.” I suggested that he may want to know to whom he is sending messages multiple times, he said, “You are being too aggressive.” I pointed out that I was asking a question just like the lawyers who, one presumes, gobbles up the Catalyst products. He took my name, did not ask how to spell it, wrote down my direct line and did not bother to repeat it back to me, and left me with the impression that I was out of bounds and annoying. That was amusing because I was trying hard to be a regular type caller.

A happy quack to Bitter Lawyer which has information about the pressures upon some in the legal profession. See http://www.bitterlawyer.com/i%E2%80%99m-unemployed-and-feel-ripped-off-by-my-ttt-law-school/

Mark, Monk, Matt, or Mump may have delivered the message and the Catalyst top dog was too busy to give me a jingle. Another possibility is that Mark, Monk, Matt, or Mump never took the note. He just wanted to get a person complaining about PR spam off the phone. Either way, Catalyst qualifies as an interesting example of what’s happening in eDiscovery. Desperation marketing has infected other subsectors of the information retrieval market. Maybe this is an attempt to hit in reality revenues of $1.5 billion?

Getting big money for any information retrieval system is getting more and more difficult. Sure there are some big contracts. I learned about a NASA deal which is focused on reducing the inefficiencies of status quo systems provided by information system vendors. But law firms, like NASA or the Department of Justice, have some budget realities with which to cope. Even top rank law firms are no longer able to bill with abandon. Clients, even those faced with some kick back time in a minimum security prison, are limiting some legal costs.

Cost cutting, then, may be turbo charging eDiscovery sales. Smart software eliminates the need for those expensive attorneys, their health care, and their share of the firm’s profits. Clients are the prime mover because law firms have to deliver and reduce costs. According to the news release spam I received coincident with LegalTech, eDiscovery “smart” software can:

• Predict
• Analyze
• Filter
• Identify
• Inter-related
• Create an audit trail.

These are positive aspects of a software system. If the system works as advertised, then the law firm and the client are both winners. Both have more money to spend on essentials such as a new BMW M5 or a continuing education cruise.

Now back to the source document. Another interesting segment addresses how eDiscovery outputs could hypothetically used in a US legal matter. Here’s the passage I noted:

Each side was deeply, hypothetically unhappy with the other. Judge Baylson observed that there were three ways to resolve this dispute: 1) depose those individuals actually involved the review (i.e., the IT guys); 2) appoint a Special Master; and 3) sjbfwbfoe&%ubfo44…. Huh? Sorry, nodded off there for a sec.

I know the feeling. No one really knows what to do with some machine output. Even those with a dog in the fight AND a horse in the race have a tough time figuring out what a judge or other poobah will make of content generated by an algorithm. Does an information technology professional know how and eDiscovery system works? In my experience, most of the people working at an eDiscovery software development firm do not know how the system works. Your mileage may differ but most of these systems are tough to dissect. Some firms just recycle good old Sir Thomas Bayes’s inductive methods and slap on some fancy words. Others take one of the 10 off-the-shelf algorithms, code up a wrapper, and start selling eDiscovery. The double talk and feinting of enterprise search inspires some of the eDiscovery firms. The article states:

During the discussion, Judge Baylson noted, delicately, that there is a wide range of levels of technological savvy to be found among the judiciary and that attorneys would do well to account for these variances in tailoring their arguments. Relatedly, there is a movement afoot, spurred on by a series of recent ethics opinions, and embodied in recent changes to the ABA Model Professional Rule 105A, to hold lawyers accountable for their relative (in)competence regarding all matters technological. Under the new Rule 105A, “[t]o maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” But this is an after-the-fact approach: whether a lawyer ought to be found in violation of an ethical obligation for a technological lapse.

Oh, oh. Accountability. Yikes. Keep in mind that search systems generate significant dissatisfaction among users. Even information professionals graduating from library school are pretty comfortable just taking whatever the system spits out.

I enjoy folks who are confident in their research when that research comes from smart systems which they do not understand or even question. Yes, the thrill of eDiscovery. Worth watching the antics of the eDiscovery vendors. You can find a list of the players at http://goo.gl/ZNRtv at least for a while.

Notice some of the vendor names:

• Autonomy, yep, that in-the-news HP unit
• Catalyst, the aforementioned outfit which does not return my phone call
• Clearwell Systems, a unit of Symantec, also in the news with regard to a hack at the New York Times
• FTI Technology, a company growing organically and inorganically via acquisitions
• Palantir Technologies which has more than $150 million in venture funding
• Recommind, the predictive folks and Securities & Exchange Commission choice
• Thomson Reuters, news and integrity contracting services
• Zylab North America, work flow, search and some astounding visualizations.

There are many other information retrieval firms on the LegalTech list. Like the vendors who have morphed from search to Big Data with a Web page update, eDiscovery is a growing sector of search. Are systems easily differentiated? Do these systems deliver results which win cases? Are these systems performing intellectual or knowledge work on a par with the humans who used to do the work? Good questions. I don’t have any answers. I am certain there are some azure chip folks out in the legal world who assert, “I know.”

Stephen E Arnold, February 2, 2013

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