Phil Favro of Recommind has published a summary on the Recommind blog of the issues facing lawyers in 2015 and calls on various experts to give their views.
Unsurprisingly, the growth in data volumes is seen as the biggest problem – Jason Baron is quoted as saying “[i]t’s an arms race between data and smarter analytics, and the data may be winning!“
This rather depressing conclusion is echoed by others interviewed for the article. Robert Owen is quoted as saying…
“Systemic collapse is where we are headed as long as imposing discovery burdens on defendants is cost-free and data volumes and complexities continue to grow.”
…and the theme of over-preservation is echoed by others. Judge Derek Pullan says that the system is “collapsing under its own weight”.
Growth in data volumes is not unique to the US, although it is possible that Americans create data bigger and faster than everyone else. The problem which puzzles the rest of the world is why the US amplifies the problem by seeming to require the preservation and hold of so much data in anticipation of litigation. It is not just litigation, of course – US regulators are equally to blame for the requirement to keep and make accessible vast volumes of data against the possibility that it might just be relevant one day.
When you add the fact that the word “relevant” seems to have nothing to do with the question whether the data is likely to be determinative of any issue which actually matters, you can easily see this requirement as a train which is gathering speed but which has no one at the controls.
There is a general consensus (which is implied from most conversations on the topic even if it is not expressed) that the proposed amendments to the Federal Rules of Civil Procedure will do little to reduce this burden – Kelly Twigger, interviewed in another Recommind article, suggests that the changes are “mostly cosmetic” with the exception of Rule 37(e) relating to the ability to get sanctions for negligent destruction of ESI. She says, with understandable cynicism, that..
“the biggest takeaway from the new amendments may ultimately be that you better make sure you have someone who understands them and can advise your business on them before there is trouble.”
So it seems that the requirement to manage – to keep, and make accessible – these ever-growing volumes of data is a given. Like the weather, no one appears able to control it. Meanwhile, litigation and the duty to comply with regulatory requirements becomes a major head of expense, drawing off money which could be invested in American businesses.
What answers do Recommind’s interviewees offer? Better use of technology such as auto-classification tools, both in the context of eDiscovery and pre-emptively, provide part of the answer. Lawyers can use “advanced analytics, predictive coding, and other machine learning tools to save time, reduce costs, and get ‘to the facts 10 times faster than [an] opponent'”.
The competence of lawyers in the use of this technology comes up, in the prudent commissioning of tools and services and in their use, but also (a recurring theme of mine) in recognising that new sources of data – new devices, used differently and for a wider range of purposes – are major potential sources of discoverable data.
These are all common themes elsewhere. The rest of us must be thankful, I suppose, that the US has imposed on itself such a major volume problem that it nurtures both the tools to deal with them and thoughtful people like those who contributed to Phil Favro’s article.