By Timothy P. Harkness and Dana L. Post
(Timothy P. Harkness is a partner in Freshfields Bruckhaus Deringer’s U.S. Commercial and Securities Litigation practice. Dana L. Post is a senior associate in Freshfields’ U.S. Litigation practice.)
Over the past few decades, the technology revolution has profoundly changed the marketplace as machines have replaced humans in virtually every sector in the global economy. The impact of technology was particularly felt in sectors such as the automobile industry where skilled workers were replaced by automated labor in the forms of computers and robots.
Many attorneys, however, felt that the legal profession was insulated from the changes that had rocked other industries. They were wrong. Indeed, those paying attention to the practice of law in recent years have witnessed signs that the legal profession is about to experience the same sort of transformative change that revolutionized the automobile industry towards the end of the 20th century.
Computers, once thought of as tools for lawyers, are well on their way to replacing much of the work that lawyers do altogether. This profound change took a giant step forward recently when two courts endorsed what is cryptically called “predictive coding” —the use of sophisticated algorithms to enable computer software to determine the relevance of documents.
Predictive coding is not something most lawyers think about much. Many probably have not even heard of it and you likely will not see it featured anytime soon on your favorite law-themed television shows. However, attorneys unwilling or incapable of adapting to the shift towards the use of e-discovery technology may find their jobs in peril.
Twenty years ago, big law firms used to staff their major litigation matters with teams of eager associates who would spend a significant amount of time in conference rooms and warehouses reviewing documents.
Turning pages was drudgery, but important drudgery. It was how law firms learned their cases and found the evidence that drives big corporate lawsuits. It was also how firms made piles of cash. Copying services did well in this era, as did a host of other support services.
Ironically enough, as the years marched on, computers actually increased the manual review of documents. The volume of documents exploded with the advent of e-mail. A case that might have had a few hundred documents in the 1970s had thousands, maybe even millions, of documents in the 1990s. Law firms were literally drowning in documentation.
The onslaught of documents was good news for law firms and bad news for clients. Costs and complexity skyrocketed. With it also came the era of the “smoking gun” e-mail. While driving big cases and making headlines, this also required e-mails to be scrutinized line by agonizing line.
Technology companies responded to this boom in discovery-related expenses by developing review tools that made document review easier and more efficient. Still, people, representing billable hours, had to click through each e-mail and document to search for relevant evidence. To contain costs, an industry of temporary lawyers and offshore review services sprang up. This helped control spending somewhat, but did not solve the core problem — the proliferation of electronic data was making each new case more document-intensive than the one before it.
The next stage in the evolution of litigation management was the use of search term and other crude data-limiting techniques, designed to cull data sets and make them more manageable. Lawyers being lawyers, we have found ways to fight about and litigate search term lists and the like. So, although these tools helped simplify some cases, they were hardly a panacea.
For years, people have been saying that the next step for the law would be the use of artificial intelligence to review documents. No more search terms or armies of expensive associates. We will let computers do the job once done by eager new lawyers. But, the law being the law, something new is hard to introduce. Someone — ideally a judge — would need to rule on whether this new approach is acceptable. With such a precedent in hand, more clients can expect, and likely demand, the use computers to replace their lawyers.
Well, that day is here.
On April 26, in Da Silva Moore v. Publicis Groupe, U. S. District Judge Andrew Carter of the Southern District of New York adopted an order by Magistrate Judge Andrew Peck that specifically approved the use of predictive coding. Judge Peck’s decision in Da Silva Moore was the first to recognize predictive coding as an acceptable method of searching for electronically stored information.
In his opinion, Judge Peck recognized the obvious — that manual review of documents has become too expensive — especially where millions of documents are involved. He also stated that “while some lawyers still consider manual review to be the ‘gold standard,’ that is a myth, as statistics clearly show that computerized searches are at least as accurate, if not more so, than manual review.”
With respect to keyword searching, Judge Peck took a dim view stating that this technique is often “over-inclusive,” “not very effective” and that “[i]n too many cases . . . the way lawyers choose keywords is the equivalent to a child’s game of ‘Go Fish.’” Accordingly, provided that suitable protocols are in place, Judge Peck found that predictive coding was a reliable method of reviewing documents.
Interestingly, Judges Peck and Carter both acknowledged that there are risks inherent in any method of reviewing electronic documents and that no review tool guarantees perfection. Litigants must thus do what is reasonable and proportionate under the circumstances and not meet some standard of perfection. The very first Federal Rule of Civil Procedure codifies that view, reminding us that our court system is meant to “secure the just, speedy, and inexpensive determination” of lawsuits.
The Da Silva Moore opinion undoubtedly paves the way for a new era in the legal industry. Shortly after the issuance of the decision, a Virginia state court judge issued a decision in Global Aerospace Inc. v. Landow Aviation LPthat allowed defendants to use predictive coding for processing and producing electronic data. Thus, to stay ahead of the curve, law firms would be well served to train attorneys on, and educate clients about, this recent court-endorsed technology.
While many attorneys fear the changes in store for the industry, there are tremendous benefits associated with predictive coding. Predictive coding will enable attorneys to cull through documents more quickly to perform an early case assessment. Inconsistencies inherent in subjective manual review conducted by numerous attorneys will also be eliminated. Attorneys will also be able to focus more on important legal documents and issues in a case as opposed to spending countless hours reviewing hundreds of thousands of irrelevant documents.
For attorneys not yet ready for the evolution to come, the good news is that predictive coding, in its existing state, does not entirely replace humans. Attorneys will still need to take the time to customize predictive coding software to cull the wheat from the chaff. With that said, the legal profession is on the verge of profound technology-driven change. Those who embrace this change will be the most effective advocates of the future.