“Throughout human history, we have been dependent on machines to survive. Fate, it seems, is not without a sense of irony.” – Morpheus, The Matrix.
I always looked on that quote as an interesting retrospective on a world where machines became dependent on man, albeit enslaved man, to survive. However, in looking at the way we adopt technology to increase efficiency and streamline workflows, another way to look at that quote dawned on me. We routinely replace tasks performed by hand with those performed by machine. The result is usually a cheaper, more uniform product, but lacking in the quality and personal service that comes with hand-creation.
And it leads me to wonder, is that happening in the legal profession with the adoption of eDiscovery software?
With Legal Tech 2014 in full swing in NYC (and, apparently, focusing on the best way to buy cocaine online), I’ve been intrigued by the prevalence of new eDiscovery software and tools available. These new and/or improved tools boast more efficient culling and storing of electronic documents for discovery, promising to save time and money for the firms who use them. Clearly, improved automation of these tasks will be cheaper and more uniform, but are we sacrificing quality service to our clients? Are we losing the ability to sift through our client’s documents to determine what is relevant and what is not? Are we losing the ability to even tell the difference?
There is no question how valuable eDiscovery software can be. Litigants face many hurdles to making sure that all of their electronic data has been reviewed for discoverable material, which is exponentially more difficult when the litigants are corporations. Email, electronic documents, spreadsheets, text and phone communication, social media interaction – it’s all discoverable. If it’s relevant.
What do you think?
In my own experience, I’ve seen litigants in a more superior financial position routinely withhold information during discovery, only to produce it months later when a court orders it. It’s almost routine with some litigators, even though it’s a violation of both the spirit and the rules of discovery. Personally, I endeavor to produce everything that’s relevant from the start, I really don’t enjoy playing games with discovery and most of my opposing counsel reciprocate.
Yet, with the volume of information being produced in some cases via eDiscovery, a different issue arises: are we as attorneys abdicating our ethical duties to produce only those documents that are relevant?
eDiscovery encourages searching, culling, and organizing electronic files based on keywords. All documents and files that contain the keywords, along with additional culling based on search algorithms, are organized and prepared for production. They are then reviewed, usually with an eye towards preventing the production of privileged materials, before being served on opposing counsel. Where in this process is there a serious and sensible review of the documents to ensure that only relevant materials are being produced? Are there effective ways to make sure that contract attorneys and document review personnel are making sure that irrelevant materials are withheld?
More than just for the producing party, the party receiving the documents could potentially bear significant costs to review thousands of pages of irrelevant documents. And they’ll surely return the behavior in-kind, if they’re able. To me, the rise in use of eDiscovery software has created a system that encourages mass production of documents based not on their actual relevance, but rather on the presence of a keyword. This creates a significant problem in our system, whereby we are failing in our ethical duty to serve our client.
Of course, I could be wrong.
Photo credit: Stuart Miles