On January 29-31, judges, attorneys, and technologists gathered in New York for the 2013 ALM LegalTech conference and trade show. The conference, which consists of workshops, panel discussions and technology demonstrations, is a prime opportunity for corporate and outside counsel to talk about the data and technology challenges they face, catch up on recent legal developments, and preview cutting edge IT solutions.
The overwhelming focus of this year’s LegalTech was computer-assisted review (CAR). Also known as predictive coding, CAR refers to machine learning technology that can be used to automatically predict how documents should be classified based on limited human input. According to its proponents, the approach can drastically reduce the time and expense associated with attorney review of large volumes of electronically stored information and is demonstrably more reliable than traditional human page by page document review.
In prior years, LegalTech panelists, keynote speakers, and technologists spoke extensively and enthusiastically about how to use CAR, when to use it, and how to defend it. It generally was agreed that CAR was a valuable tool that could drastically change the way litigants respond to discovery, but that it had not gained mainstream acceptance because of uncertainties regarding its defensibility. Those concerns were assuaged by a series of 2012 decisions which have endorsed the use of CAR in discovery.¹
Magistrate Judge Peck of the U.S. District Court for the Southern District of New York issued the first judicial opinion expressly approving the parties agreed upon use of predictive coding technology in discovery in Da Silva Moore v. Publicis Groupe &
MSL Group, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012) (adopted by 2012 WL 1446534 (S.D.N.Y. Apr. 26, 2012)). Judge Peck, a long standing proponent of CAR, proclaimed that “[w]hat the Bar should take away from this Opinion is that computer-assisted review is an available tool and should be seriously considered for use in large- data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review. Counsel no longer have to worry about being the ‘first’ or ‘guinea pig’ for judicial acceptance of computer-assisted review.”²
LegalTech participants heard Judge Peck’s message loud and clear. However, the trend towards judicial acceptance and increased interest are only first steps. There are many questions that will need to be considered as litigants attempt to implement CAR protocols. To what degree should the requesting party participate? Should the responding party disclose the use of CAR? What is an acceptable level of accuracy? These questions will be addressed in the coming years as litigants and courts grapple with the new technology.
Another hot topic at this year’s LegalTech was “big data.” Big data is a term used to describe data sets so large that commonly-used software tools cannot be used to capture, curate, manage, and process the data within a tolerable elapsed time. Examples include internet search indices, posts to social media sites, digital pictures and videos, consumer transaction records, sensor data, and a host of scientific data.
Most of the LegalTech discussion focused on defining the big data trend, how it can serve as the basis for gaining competitive advantage and the increasing importance of sound information governance policies. According to IBM, 90% of all electronic data that exists in the world today was generated in the last two years. This statistic raises further questions about how companies will be able to keep up with this ever increasing data store and the impact it will inevitably have on litigation.
Bring your own device (BYOD) was another popular topic on the exhibit floor. BYOD refers to the increasingly prevalent practice of permitting employees to use personally owned mobile devices such as laptops, tablets, and smart phones to access company information and networks. This practice is not new. However, the increased use of smart phones and tablets for both personal and professional uses, increased consumer demand for software and applications that allow for mobile access, and the associated security, litigation, and privacy risks have put BYOD on the radar of counsel, IT professionals, and service providers.
Whether companies are ready to address BYOD or not, employees are already accessing company data and networks on personal devices when they link company email accounts, calendars, and contacts to their smart phones; access company networks via their laptops and tablets; and upload data to the cloud for use on mobile devices. Though attractive from a productivity and flexibility point of view, this practice raises a number of significant questions: How can company data be secured on personal mobile devices? How can the company track the use of personal devices for purposes of a legal hold? How will the company ensure that its data is properly deleted when the personal device is retired? How will the use of personal mobile devices fit into the company’s document retention program? How will BYOD fit into the company compliance strategy? Should the company adopt a BYOD policy and, if so, what should it address?
There appears to be a general lack of awareness, infrastructure, and policy around the BYOD trend. A recent study by SANS Institute indicated that the majority of the 650 businesses surveyed allowed personal devices to connect to protected corporate data while only 9% were fully aware of what those devices were and what they were accessing.³ The study further showed that 50% of the companies that allowed personal devices did not have any policies in place.
All three hot topics are rooted in the reality of an ever expanding universe of electronically stored information. This inevitable continued growth will make information governance more critical with a corresponding need to be addressed from a legal, policy, and IT perspective.
² 2012 WL 607412 at *12.
³ Kevin Johnson & Tony DeLaGrange, SANS Survey on Mobility/BYOD Security Policies and Practices, SANS Institute (October 2012).