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As volume of legal data grows, electronic discovery is a must

As it becomes more common to store information electronically, and as the volume of electronic data increases, electronic discovery service providers and the legal profession are looking for new ways to help attorneys find and sort information quickly and intuitively.

Michael D. Berman, a Baltimore attorney who teaches e-discovery at the state’s two law schools, said lawyers began to pay attention to electronically stored information in the early 2000s. Today, with the prevalence of home computers and cell phones, e-discovery has crept into all kinds of cases.

“To some degree, e-discovery is ubiquitous in all aspects of legal practice because electronic information is the communication method and analytical tool of business and government,” said Berman, of Rifkin Weiner Livingston LLC. “If you don’t deal with electronic information, you’re not dealing with most of the information.”

While there have always been discovery support services — in their previous iteration they did things such as photocopying — Berman said the industry that has grown up around e-discovery focuses on the forensic side, copying emails and hard drives, and on the review side, searching through data.

Marc Hirschfeld, a former practicing attorney and the founder of Silver Spring-based Precision Legal Services, said he works mostly with small- and medium-sized law firms and looks at every case from the perspective of how he would address issues if he were the attorney.

“I absolutely see a continuing need (for e-discovery support),” he said. “There’s need for people like me more than ever.”

Most recently, e-discovery providers and attorneys that use their services have turned their attention to time-saving innovations such as predictive coding, which learns what kind of documents the user is seeking, and artificial intelligence, where the computer can teach itself without requiring examples from the user at all.

Hirschfeld said predictive coding was “all the rage” beginning around five years ago as a way to deal with large amounts of discovery data in litigation.

“The next iteration … is where the computer actually learns the issues of the case,” he said.

David Carns, chief strategy officer at Casepoint LLC, said a constant project is how to make the tools more user-friendly for attorneys.

“The first few versions (of predictive coding), man, you really did have to be a really tech-oriented person to approach it and that led to lower adoption rates,” said Carns, a non-practicing attorney. “Now it’s woven into the fabric of e-discovery software, so at times you could be using it without even realizing you’re using it.”

Casepoint, based in Tysons, Virginia, makes a “large data-mining suite of tools” used to produce discovery material and analyze received material, Carns said.

“The No. 1 thing is to make it easier to use and more intuitive,” he said. “Expecting attorneys to sit through training or read a manual is just a fool’s errand.”

As the electronic storage of evidence becomes more common and as the volume of data grows, firms of all sizes need to be aware of the options available to meet their clients’ needs without breaking the bank, said Samuel Draper, executive director of Baltimore-based Special Counsel.

“With a seemingly unending escalation of available data, the costs associated with traditional approaches to discovery — grab everything and review everything — are exploding,” he said.

Carns said that even a “run of the mill” case can now involve hundreds of gigabytes of data and that companies must adjust their approach to be most effective.

“The raw problem across this whole industry is there’s just more data today and there will be twice as much data tomorrow as there was yesterday,” he said.

Berman said law firms are also wrestling with the question of when it’s cost-effective to contract out e-discovery versus doing it in-house.

“Some extremely large law firms are bringing it in-house; some law firms have contracts with vendors that they have a specific relationship with,” he said. “There’s no one size fits all.”

But all firms need e-discovery, Precision Legal Services’ Hirschfeld said.

“I’m seeing that you can’t get away without it at this point,” he said. “Most of the petty fights in court are about e-discovery.”