Law Technology Today From the ABA Legal Technology Resource Center
Related Articles
At the heart of every e-discovery effort – whether it’s for litigation or for a regulatory or internal investigation – is the need to find key facts and information as quickly and thoroughly as possible. And while this is the ultimate objective for everyone on the e-discovery team, the industry’s traditional approaches often slow down the process of getting there. With linear review, it can be very easy to miss facts that could be potentially pertinent to a case. Traditional, linear workflows were created before technology advancements offered an alternative. But now, advanced data mining technologies that have been designed around the practical limitations and demands of complex e-discovery efforts are enabling a better way.
Visual analytics, for example, are flipping linear review on its head, and have emerged as one of the most promising innovations shaping the future of legal technology. At the outset of litigation or a regulatory or internal investigation, key facts can drive both review strategies and broader case strategies, giving critical insight that will help the legal team determine the merits of the case early on. Finding facts late can often be detrimental to a case, frequently causing the need to go back and conduct re-review to find what was originally missed, or shifting direction mid-way through a matter. These scenarios can be costly and waste precious time, in circumstances when time is already scarce.
Today, when an investigation or litigation arises, most attorneys default to collecting documents based on specified criteria, culling the data set based on search terms, custodians, timelines or other metadata and then conducting manual review – examining each individual document to determine relevance and find key information. But we’re seeing the market shift, with an increasing interest and openness to the concept of visual analysis and a find facts fast approach that focuses on getting to key information and themes quickly, before review begins. Attorneys are becoming more receptive to this approach because the value-add is obvious: quickly building a case from the outset, controlling or reducing costs and ensuring a defensible strategy.
It’s important for attorneys – those already making the transition away from linear review, as well as those reluctant to abandon traditional approaches – to understand the benefits analytics can deliver when implemented at the outset of a matter. A find facts fast approach offers an alternative to keyword search and linear review by combining visualizations and experienced researchers who know how to interpret and parse the data. By viewing the data from a birds’ eye view and in context of the entire document population, it is possible for counsel to locate and understand key information very quickly and more cost effectively than manual review. Below are a few examples of how visual analytics are shaping the future landscape of the legal industry.
Internal investigations
Often times, corporations that act as a whistleblower on violations within their own organization can gain some leniency with regulators. This may come in the form of reduced enforcement actions or sanctions, which is a strong argument for the importance of conducting proactive internal investigations when suspicion arises. Investigations can become extremely costly, resource-intensive and disruptive to the business, putting the legal and compliance teams in a difficult position when it comes to the decision of whether to self-report.
With visual analytics as the guide, the legal and compliance teams can easily put together the story of what happened and when and who was involved for the regulators, playing a proactive role in shaping the scope of the investigation. This approach allows the legal team to let the content of the documents illustrate the case, rather than trying to piece together a story through time-intensive manual review.
Responding to Regulatory Inquiry
Similar to what is outlined above regarding internal investigations, analytics can streamline an investigation when a regulator is already involved. When a corporation is notified that a regulator is pursuing an investigation, it isn’t always clear exactly what the government is looking for; and legal teams may be starting the process without any context for the matter. A linear approach would involve structuring the investigation by timeline or users and reviewing with a broad brush, which isn’t always efficient in getting down to the information that will be relevant to the regulator.
Visual analytics can group similar documents together, both at a high-level group and individual document level, so that any topic that is of potential interest can be examined and looked at alongside related information, helping to put together the breadcrumb trail of what actually occurred. This knowledge enables counsel to determine the corporation’s stance in the big picture of the investigation, and build strategy around how to work with the regulators.
Deadlines are also a key factor in investigations – sometimes an organization is given only two weeks to respond to the inquiry – making it nearly impossible (and more expensive) to conduct a thorough and defensible linear review. Conversely, by using the find facts fast methodology, key information can be identified and looked at well ahead of regulator deadlines. The issue of time-sensitivity is another reason why many attorneys are becoming increasingly receptive to new, alternative approaches.
Trial-prep and strategy
Many attorneys will approach their matters in chronological order: review for document request responsiveness and produce first, and then begin working on trial strategy and witnesses and deposition preparation. Visual analytics can allow these activities to take place in parallel, so that the key documents are informing the review as well as the all-important trial preparation process. By looking at how key facts come together in the context of certain individuals, attorneys can understand how to prepare witnesses, how depositions are likely to play out, and provides more opportunities to prepare a defense against ‘bad’ documents. This approach can also be applied to inbound documents from opposing counsel, so the team can quickly grasp what key information is in the other party’s data and understand how that may impact the existing case strategy and depositions. Without analytics, counsel is looking at another lengthy review process to examine the information that has come in from the other side.
One of our current clients involved in a high-stakes, complex litigation is taking this very strategy, using the find facts fast workflow to identify documents that tell their story at the same time that a separate team is working through the responsiveness review for production to the opposing side. In this matter, analytics researchers leverage visualization technology to mine the dataset for documents that tell the client’s affirmative story. They have found that some of the important pieces of information did not hit on search terms, but were discovered using visual tools, and other were found much earlier through the research.
By understanding the merits and weaknesses of the matter at the outset, counsel is in a much stronger position to make decisions about what must be protected, what posture to take with opposing counsel or regulators and what is worth negotiating over. Among our clients, we’re seeing an increasing receptiveness to consider new strategies that help uncover important documents quickly, and maintain higher standard of defensibility they expect with traditional methods. As more and more cases are handled with visual analytics, adoption will swell and additional benefits will snowball. Eventually, it is likely to be come the de facto way of doing e-discovery.
