In the world of information, search capability reigns supreme. Companies seek to maximize their enterprise search capabilities for business purposes; marketers aim to improve Internet search effectiveness to profit from targeted advertising and display. Information and computer scientists work to develop new conceptual and artificial intelligence methods for search, coupled with collaborative and social networking capabilities that permit “the crowd” to improve search by the natural selection of useful information through frequent retrieval and reference.
On a hill overlooking that busy kingdom of search professionals sit the lawyers (and the judges), trying their best to formulate rules and best practices for searching data sets in response to discovery demands in litigation. Yet, despite the close relationship (indeed, overlap) between search efforts for business, commercial, and academic purposes, and search for purposes of discovery in litigation, to a large extent the legal community has ignored developments in these other areas.
Why? Several reasons may explain the disconnect:
For a very long period, discovery in litigation was a purely paper activity. Documents were reviewed by hand for relevance (producing handsome profits to lawyers in document-intensive cases).
The service professionals with whom lawyers traditionally worked handled documents primarily in the context of litigation (copying pieces of paper mostly). Modern e-discovery service vendors largely grew out of that tradition.
The only search mechanisms generally taught in law school concern closed sets of materials, i.e., judicial opinions and other materials gathered by large publishing companies such as Westlaw or LexisNexis.
Attempts to automate the discovery process focused almost exclusively on the ad hoc process of gathering information for the particular case. Lawyers and their support staff did not concern themselves with how information was created and structured.
Those days may be gone. Over the past few years, lawyers have increasingly come to recognize that they must embrace the rapid changes occurring in the fields of information science and search. Consider the following:
Courts, like that of Judge Facciola of the District of Columbia, have suggested that expert assistance is required to formulate reasonable searches for purposes of discovery in litigation. See United States v. O’Keefe, 537 F.Supp.2d 14, 24 (D.D.C. 2008): “Whether search terms or ‘keywords’ will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman..." Lawyers guessing at the key-words that might retrieve relevant information simply will not do.
Legal think tanks, such as The Sedona Conference, in attempting to formulate best practices for legal search, have expressly drawn upon the literature and experience of non-legal search professionals to engage in concept searching, fuzzy logic, and other search techniques.
Despite these positive developments, lawyers have a long way to go. Most lawyers do not even bother to study search and information retrieval in law school. The lawyers who do know something about search have their own literature on search and information technology. They hold their own conferences on such subjects. They have their own associations for the study and promotion of law-related technology.
In the end, as with many things in law, money changes everything. As businesses increasingly demand cost savings in e-discovery, lawyers may be forced to learn how to use enterprise content management, tagging, and other techniques that may save money in discovery by helping to structure the data that must be searched.
The trend toward “cloud” computing, through Internet service, moreover, may force lawyers to recognize that they are part of a much larger information world. Indeed, lawyers and information professionals ultimately must work together to address a host of other information-related challenges, such as privacy, data security, viruses, and other problems.
[Disclosure: The author is a partner in the New York City offices of Jones Day, a law firm, and teaches Electronic Discovery at Rutgers and New York Law School. The views expressed are solely those of the author, and should not be attributed to the author’s firm or its clients.]
— Steven C. Bennett is a partner in the New York City offices of international law firm Jones Day.
There are, increasingly, "outsourcing" services that will assist lawyers (and their clients) at low(er) cost in the area of search for purposes of legal analysis (retrieval of cases / authorities on a given point of law), and also (separately) search for purposes of responding to discovery requests. Such services raise an entirely separate problem: sanction for "unauthorized practice of law," to the extent that they purport to offer legal services, unless some lawyer takes responsibility for supervision of the work. See
Bennett, The Ethics Of Legal Outsourcing, 36:4 U. N. Ky. L. Rev. 479-94 (2009).
Yes, a previous comment hit it on the digital discovery head. Lawyers will indeed find ways to use digital forensics big time. At several hundreds of dollars per billing search hour, there's no reason a hungry attorney would not join this gravy train.
I've been billed for 'research' time in past years, researching presumably stacks of law books. If an attorney can sit at a laptop and research, between picking up email and sending electronic bills to clients, I see no reason he won't happily go for the newest way of billing clients.
Lawyers conceivably can perform the e-discovery searches, but there are some essential problems: (1) Is the lawyer's search effort privileged/work product information? (2) Even if not, could the lawyer provide competent (maybe expert) testimony to confirm that a particular search was "reasonable." At least one judge (Magistrate Facciola of federal district court in DC) suggested that "angels fear to tread" in this area, without the help of IT (and maybe other, such as linguistics) experts. Courts are suggesting, however, that lawyers should, where possible collaborate on these kinds of issues, to work out agreed schemes for reasonable searching of information.
They don't have to do the grunt work. They can hire that talent out. I don't see lawyers so much using the technology, but understanding when to use it and contracting with a professional in digital forensics.
A lot depends on the situation.
Corporate legal entities can work with their IT departments to assist. Even better is the e-Discovery software available to enterprises. Among them, Clearwell, Vericept, Guidance Software, etc... Some of these make it really simple, through a point-and-click interface and wizards, for a lawyer to perform the search themselves.
For forensic discovery beyond email search a professional forensic investigator should be used. Though much of the forensic platforms today make the work a lot simpler, it helps to understand the technology at the base level to best conduct the investigation.
Lawyers will learn to embrace e-discovery and digital forensics. Just about any case a lawyer works on involves some means of technology at some point. Lawyers want to win cases and it will only be a matter of time that the "technically-phobic" lawyers cannot do so without coming into the fold.
Think about it. Who doesn't use email, instant messaging, or Facebook?
Who doesn't have a computer that they haven't stored personal documents on?
These are valuable assets for a lawyer and they could be the only link to a winning judgement in a case.
With some limitations. The problem here is that there may be a relatively high "barrier to entry" into the search space (at least on a full scale level). Lawyers are (by and large) not computer scientists. They really cannot do the "grunt" search work themselves. They have to work with experts / consultants. These days, indeed, many of the experts / consultants are taking work AWAY from the lawyers, by offering to show their clients "best practices" that supposedly can lessen the burdens of discovery. So, it may actually be getting harder for lawyers to "make a buck" in this area. On the other hand, it remains the case that the lawyers ultimately have responsibility for supervising the discovery process, so some understanding of this technology is essential, if only to fulfill that supervisory role.
There's a movement (small in scope at present, but growing) to make law school more relevant to the practice of law. Some schools have developed curricula / internship programs aimed at helping law students connect with / prepare for the "real world." Oddly, those efforts are sometimes labeled "anti-academic," and generally looked upon as secondary to the central purpose of law school: to make the student "think like a lawyer" (in the words of the fictional Professor Kingsfield).
I've often wondered why law shools don't do a better job of prepping their students for the business of law, and educate them more about technology, legal business practices, etc.
But as I heard someone say once, "you go to law school, not lawyer school"
Lawyers coming straight out of law school have pretty much lived in a search / technology rich environment their entire lives. They will bring that experience to their new jobs, and will demand access to cutting edge technology.
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A recent Michigan case -- Ahmed v. Finley's Mfg. Co. -- concerned the settlement of class action claims that "halal" products offered at fast food restaurants in Dearborn did not comply with Islamic dietary restrictions.
The United States has no single national privacy protection agency. Over the past 20 years, however, the Federal Trade Commission (FTC) has taken a leading role in education, outreach to consumer and industry groups, and enforcement in the area of privacy and data security. The FTC’s Division of Privacy and Identity Protection, within its Bureau of Consumer Protection, enforces several federal statutes, regarding “unfair or deceptive” practices, fair credit reporting, and confidentiality of financial information. Further, the FTC takes principal responsibility for enforcement of the Children’s Online Privacy Protection Act (COPPA), which aims to place parents in control over what information is collected from their young children online.
The advancement of digital technology opens unprecedented avenues for e-commerce, aided by digital currency systems. In addition to online credit cards and other forms of payment, technology has developed to the point where individuals can carry digital wallets within their smartphones and complete transactions with near-instantaneous payment. This Forbes India article provides a description of digital wallet systems.
Social media platforms have greatly transformed personal interactions in the work environment. But the trend toward daily use of social networks, at work and elsewhere, has generated legal controversy as to what is protected worker activity and what is grounds for termination.
Google's Knowledge Graph concept of returning the "right answer" might change the Internet if it becomes a common practice, but it could also contaminate the answers with commericalism or hurt Google's own business. Can they navigate these choices?
Yahoo's new CEO can't go back to what Yahoo was; that's how it got to what it is! Instead she has to look at something that Yahoo has always rejected, which is a relationship with the telcos and cablecos. They'd love a partner in creating service applications.
Mozilla's Firefox OS could be a major advance in building smartphones and tablets with a more cloud-friendly and open interface, but there are still questions of performance and security that will have to be managed.
Yahoo's problems may be due to bad management in part, but they're also due to the fad nature of online advertising. It's easy to make costly mistakes here. Google and Facebook should beware.
Over time, demand forces will change the Internet. What will this mean at the technology level? Think a combination of cloud-address technologies, like the Donabe, Melange, and Quantum activity, and the OpenFlow switching architecture.
New York's Metropolitan Transit Authority is conducting a pilot test of digital kiosks to guide subway users to where they want to go more efficiently and at lower cost.
The whole Amazon.reader debate is a double-stupid. It's stupid to think that there's any e-book buyer who doesn't know Amazon's URL, and it was stupider to let ICANN launch the whole free-form TLD initiative to start with.
While NFC's original goal was to enhance mobile commerce applications, it is finding its way into a number of other uses, which is creating both opportunity as well as challenges for IT departments.
Enterprises would like to move to cloud computing but are hesitant because they are concerned about providers’ ability to secure company data. Here are some tips that help to ensure that if breaches occur, the business is not left holding the bag.
Edmunds separates customers into segments based on the info it collects on its site and from partners, and uses that to push out custom content, said Brian Baron, director of business analytics for Edmunds.com, at Predictive Analytics Innovation Summit.
The automotive website uses propensity modeling to target ads and customer registration forms, said Brian Baron, director of business analytics for Edmunds.com, at Predictive Analytics Innovation Summit.
Ushering in a new era of cognitive computing systems, IBM announced today the IBM Watson Engagement Advisor, a technology breakthrough that allows brands to crunch big data in record time to transform the way they engage clients in key functions such as customer service, marketing, and sales.
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