LEGAL
Advanced information collection and analytic capabilities have dramatically expanded and transformed the operations of businesses and other organizations. Those same information processing capabilities have a substantial impact on the discovery process associated with litigation. Advanced data storage and analysis tools facilitate and complicate the litigation discovery process.
Modern information technologies enable organizations to collect and readily access massive volumes of data. Those technologies also provide the ability to conduct complex analyses of the data quickly and efficiently. "Big Data" is defined differently by different people in different contexts. Essentially, Big Data is a term applied to technologies, systems, and processes that enable users to collect, access, and analyze massive sets of information. Key technologies enabling Big Data capability include fast computer processing hardware, advanced analytical software, and large-scale data storage systems.
The technologies and techniques associated with Big Data provide potential tools to enhance the discovery process for litigation. At its core, the discovery process involves identification, access, and analysis of information. These activities are all part of Big Data functions. In situations where litigation discovery involves very large collections of material, the tools and systems of Big Data can be applied to make discovery more effective and efficient.
In the past, document review associated with the discovery process was conducted by people. At present, human document review is substantially supplemented by use of computers and software to facilitate the process. For example, software that supports keyword searches enhances the effectiveness of document review.
When the volume of materials to be reviewed is extensive or the analysis associated with the review is complex, however, standard document review technologies that are currently in wide use are far less effective. Those current technologies generally encounter performance difficulties when they are applied to review of data sets containing millions of documents. Current technologies available for litigation support are most effective when the materials to be examined are primarily text, not other forms of content such as images or video.
Discovery involving very large sets of materials is likely to make increasing use of Big Data tools and techniques in the future. For example, discovery systems which apply "predictive coding" processes are becoming more popular and more widely accepted.
Predictive coding processes develop customized computer programs to support document review. The customized code is created based on human review of statistically valid and appropriate samples of the documents involved. The custom designed code is then applied to support the review of the targeted material. The predictive coding process and tools apply principles and techniques that are part of the Big Data approach to data analytics.
Big Data can also complicate the process of litigation discovery. As organizations make expanded use of Big Data technologies and systems, they create massive collections of materials which must be addressed in the litigation discovery process. Those data collections include a wide range of materials, including text, communications, images, audio, and video.
Effective management of litigation discovery requires that counsel be in position to identify and review all of the materials of an individual or an organization which may be relevant to the litigation. Organizations that make use of Big Data for their operations effectively generate massive collections of data and associated analyses and communications. All of that material must be accessible and reviewable for discovery purposes.
By generating massive sets of information which may be relevant to future litigation, Big Data presents a significant challenge to counsel. Most organizations do not design, operate, and manage their Big Data activities in anticipation of potential litigation. Yet, those organizations may, at some future point, be held responsible for reviewing their Big Data collections to identify materials relevant for discovery purposes. A key challenge for counsel is ensuring that the organization develops the capability to review Big Data collections effectively in response to litigation requirements.
Counsel should recognize the impact that Big Data has on litigation discovery. In contexts where large volumes of material must be reviewed as part of the discovery process, Big Data tools and systems can play a key role in facilitating effective compliance with discovery requirements. Counsel should understand the opportunities and the limitations associated with use of Big Data technologies and techniques as tools for the discovery process.
At the same time, active Big Data use by organizations can create complex discovery challenges. Counsel should be thoroughly familiar with the Big Data activities of his or her organization. That familiarity should include a working knowledge of the scope of material collected in the data sets and the types of analyses performed on the material.
Counsel should attempt to identify the Big Data materials most likely to be relevant to future litigation. Organizations should encourage their counsel to provide input into the planning and operations of Big Data systems in order to facilitate effective future litigation discovery compliance.
It is important to recognize that effective management of Big Data in the context of litigation discovery is not only a defensive measure, but also an offensive one. Organizations that manage Big Data effectively are more likely to have success in future litigation regardless of whether they are defendants or plaintiffs in those proceedings.
-->
