May 2016 Bar Bulletin
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May 2016 Bar Bulletin

A Better Way:
Document Mining vs. Document “Review”

By Larry G. Johnson


“Document review” is the Dante’s Inferno of civil litigation. Since almost 100 percent of documents these days are digital or have a digital origin with embedded useful metadata making them preferable to printouts, such “reviews” are conducted on computers, usually lots of them all lined up in a big room.

People who do this work are often found in front of regimented rows of monitors set up in the cavernous bowels of the building housing the law firm way upstairs, or in a distant warehouse. The reviewers typically consist of minimally paid contract lawyers or paralegals, all working on the clock. These austere venues can have a Silicon Valley feel to them, complete with discarded pizza boxes on the cheap carpet and sleeping bags here and there for the all-nighters.

Such a room comprises the set in an episode of AMC’s “Better Call Saul” series, where the girlfriend of the conman lawyer Saul Goodman finds herself banished to the law firm’s dungeon-like doc review basement as punishment for seemingly involving herself in one of Saul’s frauds. These doc review rooms can be as dark, grim and quiet as any sullen sweatshop in a third-world country, with the difference being that something of beneficial use can come out of sweatshops.

Is Your Client Getting
His/Her/Its Money’s Worth?

In a case I was involved in not so long ago, there were hundreds of thousands of documents that were distilled after extensive review to a manageable few hundred for use at trial. I calculated the average cost for each such document making the final cut at around $3,300. So many haystacks, so few needles.

It is widely understood that by far the most expensive part of the e-discovery process is the component of the human document review of usually thousands of computer-generated documents and emails to cull only the non-privileged, relevant ones for production to a requesting party.

Sadly, though, this customary review process is incredibly inefficient and unduly time consuming, and hence clients often pay a very hefty price that is hard to justify based on the results obtained.

It Doesn’t Have To Be This Way

Given the many pressures in preparing a civil case, wouldn’t you rather be free of doc reviews altogether or dispense with most of the process, since so much of it anyway is based on cynical gamesmanship and only incidentally part of a search for the truth? Is there a better way to get useful information rather than doing the death march involving many lawyers and paralegals staring at one document after another on computer screens until their brains go numb?

Of course, “doc review” can be variously defined as perceived by different lawyers. On the one extreme is the position taken by a major Wall Street Big Firm as explained to me across a conference table that a helicopter could land on: “Our associates here do not do ‘document reviews’ in our litigated matters,” this lawyer sniffed. “Their job is to learn intimately the businesses of our clients by reading every single document, one by one.” I thought I heard the distinct ringing of a cash register as he ended that sentence. I had to wonder what it must cost for all these $700/hr. associates tutoring themselves randomly by reading mountains of tedious old documents with no particular relevance to anything.

At the other extreme I suppose, if you want to call it that, is me: Give me access to the contents of a person’s smartphone, and I’ll probably have most of what I need to know from him or her in the matter: saved and deleted text messages (more unguarded in content and exchanged in greater profusion than emails); saved and deleted voice mails; saved and deleted emails; GPS data in photos taken on trips; credit card and other financial information; and a portal to all the user’s social media.1

But, you ask: “If I have to respond to production requests for all my client’s electronically stored information regarding the issues in a case, how can I know what documents are responsive if I don’t look at them?” Well, fair enough, but think about it — literally speaking, do you in fact look at all that ESI? Probably not.

Instead, your firm or outside e-
discovery vendor/consultant employs various software tools to search text with search terms, often in various logical “Boolean” combinations to exclude as much chaff in the data universe of assembled ESI as possible in order to reduce the size of the ultimate document review set. Then the junior associates, contract attorneys or paralegals do the drudge work of skimming through and categorizing the hopefully manageable bunch of documents for the final cut — not you.

But I submit that it is precisely in that stage of customary document review arrangement where the e-discovery process breaks down and becomes unjustifiably inefficient and expensive. By that point the doc reviewers are reduced to using a limited technology platform to glance through one doc after another, skimming through most of them, and now and then tagging some for relevance, perhaps including the relevant issue(s) to which the document relates.

That process harbors an Achilles heel: At this point in the e-discovery process, the review has been removed from the source machine(s) whence the info came, so the reviewers are divorced from the original computer context and can’t go back to look at it directly. More importantly, most if not all of the selected reviewers have no trial experience, they don’t have the litigator’s instinct for what makes for a red flag in a document or a red herring, or how a document might expose a vital clue or anomaly in the overall chronology or issues landscape of the case.

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