The Role of Lawyers in the Age of Electronic Discovery — Don’t Hit Delete!

Will developments in technology make lawyers more efficient or will they become extinct? A March 2011 article in The New York Times, entitled “Armies of Expensive Lawyers, Replaced by Cheaper Software,” discussed the significant efficiency and accuracy of e-discovery software in document review over that of human review. Although technology has enabled computers to imitate humans’ ability to reason at even higher levels, rest assured that Armageddon is not looming on the legal profession’s horizon.

The New York Times article discusses the development of e-discovery software that can analyze documents more quickly than human counterparts. The “linguistic” approach enables the user to find and sort documents that are deemed relevant by searching specific words or phrases. More sophisticated linguistic software can even search and filter documents based upon a tool analogous to a thesaurus. For example, if “dog” is deemed the relevant search term, the user may be able to locate documents that contain phraseology such as “man’s best friend.” Meanwhile, the “sociological” approach uses deductive reasoning and is more conceptual. For example, if someone suddenly switches their communication from e-mail to telephone after writing “call me,” it may trigger heightened scrutiny if that person is under investigation for something. Similarly, some software can even detect when an e-mail author’s style has switched from slang and abbreviations to a more formal style.

The article further cited to law firms’ experiences with e-discovery software. One firm utilized software to sort and assess 570,000 documents in two days, which, in turn, enabled the firm to identify in one day 3,070 responsive documents. Another firm cited software’s ability to scrutinize and understand how the company it was suing functioned. Lawyers have also used such tools by searching their clients’ documents during negotiations based on key words that the adversary had designated as such during pretrial proceedings.

Regardless of how the software is utilized, the role of a live attorney is not lost. While document processing and analysis will cull down documents to a substantially smaller review set, best practices suggests that an attorney must ultimately review whatever documents have been sorted or culled before they can be produced. As noted by “The Sedona Conference^®, Commentary on Achieving Quality in the E-Discovery Process,” May 2009, quality and procedural safeguards must be built into the e-discovery protocol in order to ensure the discoverability of key evidence, accord the proper privilege or work product protections to documents, provide a defensible process, reduce the need to re-do e-discovery because of deficiencies and to avoid motion practice. The Sedona Conference^® recommends:

1. Judgmental Sampling – the selection of sample documents, whether either culled by a e-discovery software program or by a reviewer, to determine if the documents are truly responsive or relevant to the issues at hand.
2. Independent Testing – Tests by third-party reviewer to confirm a software’s “reported efficacy at completely extracting files from an e-mail container, accurately displaying such files for review, and completely indexing the searchable text in such files.”
3. Reconciliation Techniques – Comparison of the amount of ESI processed and the resulting review set in order to confirm that the ESI was handled correctly or to identify gaps in the processing.
4. Inspection to Verify and Report Discrepancies – Attorneys, particularly senior attorneys, should be available to assist reviewers, address issues and to sample review data sets to confirm and to ensure the quality of the review.
5. Statistical Sampling – Confirm or de-confirm the effectiveness of search terms and other automated tools in identifying responsive information.

The logical question is then whether the need for the number of attorney reviewers will greatly diminish as a result of enhancements in e-discovery software. The New York Times article indicates that not everyone agrees on the extent of the impact on the labor force of the legal profession. One commentator stated that advances in technology will reduce the number of jobs in the legal sector. A second commentator, however, stated that while technology may not adversely affect the unemployment rate, the concept of automation would negatively affect job growth and individuals’ abilities to identify better jobs. In other words, despite its title, the article did not conclusively determine that lawyers were in danger of losing their jobs en masse.

So what’s the take away? Certainly, computers have made undeniable advances as evidenced by Watson, the computer that recently defeated its human opponents on “Jeopardy,” the popular trivia quiz show. In response to that computer’s performance, however, “It’s elementary my dear Watson” that technology will never completely replace lawyers. There is no doubt that e-discovery software makes lawyers more efficient and productive, but human knowledge, reaction and intuition as to facts, issues and nuances of legal theories make the role of the live attorney indispensable.