The Evolution of Litigation Management Technology

The Explosion of Electronic Data Discovery

With the gradual shift from a paper-centric workplace to an electronic one, it's always been understood that one of the most expensive aspects of managing complex commercial litigation is the electronic discovery phase of the case. But in 2006, the U.S. Supreme Court's amendments to the Federal Rules of Civil Procedure created a category for electronic records that, for the first time, explicitly named e-mails and instant message chats as likely records to be archived and produced when relevant.

In the landmark Zubulake v. UBS Warburg case, the plaintiff claimed that the evidence needed to prove its case existed in e-mails stored on UBS servers. Since the e-mails requested were either never found or destroyed, the U.S. District Court for the Southern District of New York found that it was more likely that they existed than not and directed that all potential discovery evidence ' including e-mails ' be preserved by the company. This resulted in significant sanctions against UBS and served as the “shot across the bow” that accelerated the growth of the electronic discovery services market.

Technology now streamlines the electronic discovery process for cases of all sizes. It routinely assists corporations and law firms with identification, preservation, collection, processing, review and production. We in the legal technology industry have developed amazing software tools to do complex functions such as predictive coding, early data analysis and large-scale filtering of irrelevant documents. And we're now finding powerful ways to host litigation data ' as well as large enterprise applications ' in the cloud, reducing the strain on corporate and law firm computer networks.

Emergence of Case Analysis and Assessment Tools

As jury consultants throughout the 1980s and 1990s, Greg Krehel and Bob Wiss noticed that their clients ' litigators at some of the nation's largest and most powerful law firms ' were using a surprisingly inefficient system for managing their cases, namely stacks of legal pads and briefcases stuffed with scratched notes. An idea quickly took shape: CaseMap, a new software product that would help litigation teams bring together the relevant facts, documents, cast of characters and issues of each case into one electronic case file. CaseMap would go on to be a huge hit by fundamentally transforming the way that litigators work up their cases, win dozens of industry awards, and ultimately be acquired by LexisNexis, which has continued to invest in the software to expand its functionality, extending it into transcript management (TextMap) and document management (DocManager).

“We had the first idea for CaseMap in the early 1990s and, after a long gestation period, brought it to market in 1998,” says Wiss. “CaseMap really created a new category of litigation software within the legal technology industry.”

“The number one thing I've seen change in our industry over the past 15 years has been the steady integration of different software tools,” says Krehel. “We've seen a shifting landscape from lots of independent products that played niche roles in the litigation process to these robust software offerings that all talk to each other.”

The Move to the Cloud

As litigation software tools became increasingly complex, they started to require sizable infrastructure investments to simply host the applications themselves. Moreover, in order to maintain these sophisticated tools, corporate legal departments and law firms were making additional investments in personnel with the necessary technical skills to manage these systems.

This stress on infrastructure and demand for rising capital investments has led our industry on a gradual move to the cloud. With cloud computing, the end-user no longer needs to worry about crucial logistical issues like back-up, performance or security protocols. The cloud provides the means through which everything previously operated on a PC or computer network can be delivered to users when needed.

For law firms in particular, there have been two primary options that have emerged. The Private Cloud option ' which refers to the dedicated hosting of the law firm's litigation data and software applications at a specific server facility ' provides law firms with more control over where their data resides and greater access to the physical hardware hosting that highly sensitive data, as well as service level agreements that spell out server availability, server administration, data back-up and storage procedures. The Public Cloud ' which involves the hosting of the law firm's electronic information with a service that is available to the general public over the Internet ' offers a less expensive option that can be set up almost instantly by the end user. As the years have marched on, law firm CIOs have grown more comfortable with the Private Cloud option since they believe it provides greater data security.

The move to the cloud has enabled law firms to take advantage of new technology and have easy access to both their applications and data without having to invest valuable capital in hardware or personnel.

Rise of 'Big Data'

It seems the new frontier for litigation management technologies right now is the world of Big Data management. One promising application for Big Data analysis is in electronic discovery, where fast, high-performing data analytics can substantially reduce the time and cost of preparing for a case. In fact, at the root of any e-discovery project or process is the ability to identify, collect, index and analyze huge volumes of unstructured data.

As many legal IT professionals are discovering, new analytics tools and early data assessment technology innovations are making e-discovery software smarter, which can only help law firms and their clients to better manage risks associated with failing to produce all relevant documents in a lawsuit or investigation.

For example, early data assessment tools can help reduce e-discovery costs by first culling non-responsive and duplicate files, then further refining the document set by searching text and metadata to locate relevant files. This process not only reduces the amount of files that need to be processed, it also allows users to begin the review process sooner with fewer files for attorneys to review, providing considerable cost savings. Other tools will index, filter and search data at the source, which significantly reduces the volume of data before moving to processing and ultimately document review. These Big Data workflow solutions enable litigation teams to quickly get a snapshot, capture an entire document set, assess the contents, and then eliminate irrelevant, duplicate and non-responsive documents prior to the more costly and time-consuming review and processing phases of e-discovery.

The whirlwind pace of innovation over the past 15 years has taken us to a place few experts in our industry could have predicted at the turn of the century. The evolution of litigation management technologies has allowed corporate law departments and outside counsel to get things done faster, more accurately and with less risk.

What's Next

Where are we headed in the next 15 years? In my view, there are three major trends to watch out for in the next decade:

Trend 1: Enhanced Document Analytics

We're seeing a movement toward enhanced analytics of documents at a textual level, which enables logical grouping of documents and faster decision-making regarding responsiveness by legal professionals. The ability to “index in place” and apply technology to extrapolate from a small data set to determine responsiveness across a much larger data set will become the norm in the next few years. Lawyers will bring their expertise to the case strategy by feeding search terms into the technology in order to look at a large corpus of documents and return a small subset that is most relevant for final review and production.

Trend 2: Leveraging Litigation Technology For Risk Management

In the next five to 10 years, I expect that the creators of data ' large corporations ' will seek to apply technology to look across their Big Data troves to find trends that will drive future risk management strategies. For example, what we can learn to improve fraud detection, how we can spot increased communications between individuals who do not normally interact, etc. The upshot of this will be to drive more focus on early organization and culling of large data sets by leveraging the power of technology in the document review cycle.

Trend 3: e-Discovery Comes to Small Law

For lawyers in smaller law practices, I expect to see the advent of electronic discovery in their offices where it was not previously cost-effective. Matrimonial cases, workers' compensation cases, insurance defense cases and other plaintiffs matters that were previously not appropriate for full-scale e-discovery will soon be driving the need for lawyers to obtain cost-effective software tools to handle smaller volumes of data and intermittent usage. These tools will need to be easy-to-use, inexpensive to purchase and maintain, and likely will serve multiple purposes, e.g., case analysis and document review/production.

Conclusion

It's been an exciting ride over the past 15 years for those of us in the litigation management technology business. The next 15 should be just as fun.

Matthew Gillis is vice president and managing director of the Litigation Tools & Professional Services business at LexisNexis (www.lexisnexis.com/litigation). He can be reached at [email protected].

For decades, litigation was typically associated with large paper files piled on conference tables and oversized boxes being wheeled into courtrooms. The closest thing to technology that many people ever connected to litigation was a Dictaphone used to narrate notes for transcription.

Of course, all of that started to change in the late 1980s with the rise of personal computers and the use of more sophisticated information systems, both inside large corporations and at the law firms they hired to handle litigation matters. Then, in the 1990s, we saw the real birth of a new industry that would develop innovative technologies to improve the way that litigation is managed in the U.S.

Let's take a look back at the past 15 years (1998-2013) and reflect on the evolution of litigation management technology in four crucial areas.

The Explosion of Electronic Data Discovery

With the gradual shift from a paper-centric workplace to an electronic one, it's always been understood that one of the most expensive aspects of managing complex commercial litigation is the electronic discovery phase of the case. But in 2006, the U.S. Supreme Court's amendments to the Federal Rules of Civil Procedure created a category for electronic records that, for the first time, explicitly named e-mails and instant message chats as likely records to be archived and produced when relevant.

In the landmark Zubulake v. UBS Warburg case, the plaintiff claimed that the evidence needed to prove its case existed in e-mails stored on UBS servers. Since the e-mails requested were either never found or destroyed, the U.S. District Court for the Southern District of New York found that it was more likely that they existed than not and directed that all potential discovery evidence ' including e-mails ' be preserved by the company. This resulted in significant sanctions against UBS and served as the “shot across the bow” that accelerated the growth of the electronic discovery services market.

Technology now streamlines the electronic discovery process for cases of all sizes. It routinely assists corporations and law firms with identification, preservation, collection, processing, review and production. We in the legal technology industry have developed amazing software tools to do complex functions such as predictive coding, early data analysis and large-scale filtering of irrelevant documents. And we're now finding powerful ways to host litigation data ' as well as large enterprise applications ' in the cloud, reducing the strain on corporate and law firm computer networks.

Emergence of Case Analysis and Assessment Tools

As jury consultants throughout the 1980s and 1990s, Greg Krehel and Bob Wiss noticed that their clients ' litigators at some of the nation's largest and most powerful law firms ' were using a surprisingly inefficient system for managing their cases, namely stacks of legal pads and briefcases stuffed with scratched notes. An idea quickly took shape: CaseMap, a new software product that would help litigation teams bring together the relevant facts, documents, cast of characters and issues of each case into one electronic case file. CaseMap would go on to be a huge hit by fundamentally transforming the way that litigators work up their cases, win dozens of industry awards, and ultimately be acquired by LexisNexis, which has continued to invest in the software to expand its functionality, extending it into transcript management (TextMap) and document management (DocManager).

“We had the first idea for CaseMap in the early 1990s and, after a long gestation period, brought it to market in 1998,” says Wiss. “CaseMap really created a new category of litigation software within the legal technology industry.”

“The number one thing I've seen change in our industry over the past 15 years has been the steady integration of different software tools,” says Krehel. “We've seen a shifting landscape from lots of independent products that played niche roles in the litigation process to these robust software offerings that all talk to each other.”

The Move to the Cloud

As litigation software tools became increasingly complex, they started to require sizable infrastructure investments to simply host the applications themselves. Moreover, in order to maintain these sophisticated tools, corporate legal departments and law firms were making additional investments in personnel with the necessary technical skills to manage these systems.

This stress on infrastructure and demand for rising capital investments has led our industry on a gradual move to the cloud. With cloud computing, the end-user no longer needs to worry about crucial logistical issues like back-up, performance or security protocols. The cloud provides the means through which everything previously operated on a PC or computer network can be delivered to users when needed.

For law firms in particular, there have been two primary options that have emerged. The Private Cloud option ' which refers to the dedicated hosting of the law firm's litigation data and software applications at a specific server facility ' provides law firms with more control over where their data resides and greater access to the physical hardware hosting that highly sensitive data, as well as service level agreements that spell out server availability, server administration, data back-up and storage procedures. The Public Cloud ' which involves the hosting of the law firm's electronic information with a service that is available to the general public over the Internet ' offers a less expensive option that can be set up almost instantly by the end user. As the years have marched on, law firm CIOs have grown more comfortable with the Private Cloud option since they believe it provides greater data security.

The move to the cloud has enabled law firms to take advantage of new technology and have easy access to both their applications and data without having to invest valuable capital in hardware or personnel.

Rise of 'Big Data'

It seems the new frontier for litigation management technologies right now is the world of Big Data management. One promising application for Big Data analysis is in electronic discovery, where fast, high-performing data analytics can substantially reduce the time and cost of preparing for a case. In fact, at the root of any e-discovery project or process is the ability to identify, collect, index and analyze huge volumes of unstructured data.

As many legal IT professionals are discovering, new analytics tools and early data assessment technology innovations are making e-discovery software smarter, which can only help law firms and their clients to better manage risks associated with failing to produce all relevant documents in a lawsuit or investigation.

For example, early data assessment tools can help reduce e-discovery costs by first culling non-responsive and duplicate files, then further refining the document set by searching text and metadata to locate relevant files. This process not only reduces the amount of files that need to be processed, it also allows users to begin the review process sooner with fewer files for attorneys to review, providing considerable cost savings. Other tools will index, filter and search data at the source, which significantly reduces the volume of data before moving to processing and ultimately document review. These Big Data workflow solutions enable litigation teams to quickly get a snapshot, capture an entire document set, assess the contents, and then eliminate irrelevant, duplicate and non-responsive documents prior to the more costly and time-consuming review and processing phases of e-discovery.

The whirlwind pace of innovation over the past 15 years has taken us to a place few experts in our industry could have predicted at the turn of the century. The evolution of litigation management technologies has allowed corporate law departments and outside counsel to get things done faster, more accurately and with less risk.

What's Next

Where are we headed in the next 15 years? In my view, there are three major trends to watch out for in the next decade:

Trend 1: Enhanced Document Analytics

We're seeing a movement toward enhanced analytics of documents at a textual level, which enables logical grouping of documents and faster decision-making regarding responsiveness by legal professionals. The ability to “index in place” and apply technology to extrapolate from a small data set to determine responsiveness across a much larger data set will become the norm in the next few years. Lawyers will bring their expertise to the case strategy by feeding search terms into the technology in order to look at a large corpus of documents and return a small subset that is most relevant for final review and production.

Trend 2: Leveraging Litigation Technology For Risk Management

In the next five to 10 years, I expect that the creators of data ' large corporations ' will seek to apply technology to look across their Big Data troves to find trends that will drive future risk management strategies. For example, what we can learn to improve fraud detection, how we can spot increased communications between individuals who do not normally interact, etc. The upshot of this will be to drive more focus on early organization and culling of large data sets by leveraging the power of technology in the document review cycle.

Trend 3: e-Discovery Comes to Small Law

For lawyers in smaller law practices, I expect to see the advent of electronic discovery in their offices where it was not previously cost-effective. Matrimonial cases, workers' compensation cases, insurance defense cases and other plaintiffs matters that were previously not appropriate for full-scale e-discovery will soon be driving the need for lawyers to obtain cost-effective software tools to handle smaller volumes of data and intermittent usage. These tools will need to be easy-to-use, inexpensive to purchase and maintain, and likely will serve multiple purposes, e.g., case analysis and document review/production.

Conclusion

It's been an exciting ride over the past 15 years for those of us in the litigation management technology business. The next 15 should be just as fun.

Matthew Gillis is vice president and managing director of the Litigation Tools & Professional Services business at LexisNexis (www.lexisnexis.com/litigation). He can be reached at [email protected].