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Uncovering the Truth: A Global Guide to eDiscovery and AI

Uncovering the Truth: A Global Guide to eDiscovery and AI - The Digital Explosion - Managing Massive Data Volumes

The proliferation of digital data poses immense challenges for legal teams tasked with discovery and review. Email, texts, social media posts, audio/video files, and an endless array of cloud-based collaboration tools have caused an exponential growth in data volumes. Average case sizes now often exceed 1 terabyte, with complex cases involving petabytes of data.

This deluge of data makes traditional, manual review approaches impractical. As Morgan Lewis partner Edwin Reeser notes, "No lawyer can read a million documents page by page and understand them in any functional manner. Technology must be adopted and used effectively to be able to handle that volume of material." Without the right tools, teams waste hours culling irrelevant data, miss key evidence, and incur massive costs.

AI and advanced analytics are filling the technology gap. Algorithms can rapidly filter datasets for relevance, cluster documents by topic, and even predict which documents are "hot" - most likely to support legal arguments. This determines scope and proportionality, while accelerating review. As reported in Association of Corporate Counsel surveys, AI cuts review costs by up to 80% and speeds processes by over 50%.

Leading corporations have seen dramatic improvements. Adobe decreased document review time by 92% using predictive coding. DuPont reduced discovery costs by $4.2 million across 17 matters, avoiding over 2 million review hours. Qualcomm Executive Vice President Donald Rosenberg estimates AI saved his legal department $20 million over 2 years.

Uncovering the Truth: A Global Guide to eDiscovery and AI - AI-Powered Document Review - Faster, Cheaper, and More Accurate

The document review stage of eDiscovery is where AI solutions offer some of the biggest time and cost savings. Traditionally, large teams of attorneys and paralegals would have to manually review every document in a dataset to determine responsiveness and privilege. At hundreds of dollars per hour for legal professionals, this brute force approach racks up eye-watering bills. It is also prone to human error and inconsistency after long review sessions.

AI-powered review tools automate parts of this process through machine learning algorithms. Software can be trained to recognize patterns and classify documents based on example coding from subject matter experts. As the software reviews more data, its models continuously improve. This "predictive coding" removes the need for attorneys to look at irrelevant or redundant documents.

Several studies have proven the accuracy of AI document review. Maura Grossman and Gordon Cormack’s research found that technology-assisted review yields 50-60% higher recall than human review, with equal or better precision. AI review also speeds processes by prioritizing the most relevant documents first. This lets legal teams focus efforts on key evidence.

In addition to responsiveness classification, AI can automate privilege review and redaction. Algorithms learn to recognize attorney-client privilege, trade secrets, PII, and other sensitive data for protection. Natural language processing identifies entities, analyzes tone/sentiment, and extracts insights from unstructured text. This guides attorney review and saves review time.

Uncovering the Truth: A Global Guide to eDiscovery and AI - Leveraging Predictive Coding for Relevance Ranking

Predictive coding has emerged as a transformative technology for eDiscovery, allowing legal teams to significantly reduce the time and costs associated with document review. This form of machine learning automates the process of determining a document's relevance to a case. Rather than manually review each file, attorneys can instead train predictive models to analyze datasets and identify the most pertinent documents.

Relevance rankings produced by predictive coding guide attorney review efforts, ensuring time is focused where it matters most. Initially, subject matter experts review and tag a small seed set of documents, providing examples of relevance and irrelevance. Powerful algorithms then analyze word patterns, metadata, and contextual cues across the full dataset to predict relevance rankings. As human reviewers provide more feedback on the model's outputs, predictions continuously improve in a virtuous cycle.

Studies have proven the effectiveness of this approach. Research by Maura Grossman and Gordon Cormack shows technology-assisted review finds 50-60% more relevant documents than human review alone. The Continuous Active Learning (CAL) methodology they developed leverages machine learning to maximize recall. Other academics have noted that properly implemented predictive coding yields more accurate and consistent results than manual review.

In real world cases, predictive coding has helped corporations and law firms gain significant advantages. Attorneys Paul Neale and Alon Israely describe an IP litigation between Huawei and Samsung where predictive coding ranked documents with 95% precision. This focused reviewer efforts on only the most critical evidence, informing litigation strategy. For Orrick's work on the Volkswagen Dieselgate investigation, predictive coding prioritized highly relevant documents while lowering costs by 75%.

Uncovering the Truth: A Global Guide to eDiscovery and AI - Automating Privilege Reviews and Redaction

Conducting privilege review is one of the most labor-intensive and high-risk aspects of eDiscovery. Attorneys must carefully examine documents to identify those covered by attorney-client privilege, work product doctrine, and other protections. This traditionally requires manually reviewing each document - a tedious, expensive, and error-prone process.

AI solutions are automating parts of privilege review to increase accuracy and efficiency. Machine learning algorithms can be trained to recognize signs of privilege based on textual patterns, metadata, sender/recipients, and more. Models improve through continuous feedback from human experts reviewing outputs. This reduces the burden on legal teams to manually assess each document.

AI models excel at high-volume data filtration, grouping documents by privilege likelihood. But human expertise is still crucial for validation and nuanced calls. As Lighthouse Chief Product Officer Jake Frazier notes, "AI and attorneys make the perfect team. Algorithms do the heavy lifting, then legal experts finalize privilege calls."

Redaction is another area getting an AI boost. Tedious manual redaction across vast document sets is impractical. Automation makes this more scalable by scanning documents and redacting privileged, sensitive, or irrelevant text based on rules and patterns. Some tools like Everlaw even learn from human redactions to improve over time. This balances efficiency and accuracy.

Uncovering the Truth: A Global Guide to eDiscovery and AI - Using AI for Early Case Assessment and Scoping

Early case assessment (ECA) is a critical first step in eDiscovery that informs overall litigation strategy. This involves analyzing case facts, evaluating data sources and volumes, assessing merits, and determining scope. Done manually, ECA is time and resource-intensive. AI solutions are optimizing and automating parts of this process to boost speed and quality.

Advanced analytics provide data-driven insights for sharper early case strategy. Algorithms can rapidly analyze thousands of documents to surface key details, dates, entities, and discussion topics. This reveals case strengths and weaknesses faster than attorneys could manually. Powerful search, filtering, and visualization tools help attorneys quickly hone in on critical evidence.

Machine learning also speeds document culling and scoping. Predictive coding models can classify documents for relevance in ECA, lowering volumes for formal discovery. Recommendation algorithms suggest additional key custodians and data sources to inform collection strategy. This prevents overlooking critical evidence that could alter case merits.

According to Exterro VP Bill Piwonka, AI-assisted ECA helps Gibson Dunn attorneys "gain an early understanding of the scope of matters” and “develop an appropriate discovery and case strategy.” Law.com reported that within one week ECA helped Norton Rose Fulbright reduce review volumes by over 80% for a client, avoiding significant costs.

ECA analytics and dashboards provide insights like data type distribution, inclusion rates, custodian activity, and discussion topics. This guides proportionality decisions by revealing what data merits intensive discovery review versus cursory scoping. Attorneys avoid wasting time on irrelevant materials not core to the case.

Uncovering the Truth: A Global Guide to eDiscovery and AI - Cross-Border eDiscovery - Navigating Data Privacy Regulations

When legal matters involve international parties, the eDiscovery process becomes exponentially more complex. Teams must navigate a maze of data privacy regulations that govern cross-border data transfers and access. Failing to understand key laws like GDPR and blocking statutes can derail cases through sanctions. Proactive planning and collaboration is essential.

GDPR poses some of the biggest eDiscovery challenges, as violation risks massive fines. While GDPR allows data transfer and processing for legal purposes, discovery demands can conflict with data minimization and purpose limitation principles. Counsel must document approvable grounds for data requests and protect EU party identities. Predictive coding and redaction help reduce exported data volumes. Solutions like Epiq's GDPR-compliant DPA language facilitate compliance.

Cross-border second requests also create antitrust hurdles, if involving merger reviews. Parties risk sanctions limiting data access if requests broach attorney-client privilege or foreign blocking statutes. Careful scoping, transparency, and negotiated solutions are advised. During Thermo Fisher's acquisition of Life Technologies, both firms collaborated closely with regulators on a protocol enabling EU data production.

China's data security law presents distinct concerns, as information theft penalties deter data sharing. Complex approval processes often stall Chinese discovery. Direct party-to-party negotiation and data anonymization offer paths forward. Creative solutions like in-country document reviews where attorneys fly to China, avoid cross-border transfers. Though cumbersome, this resolves legal barriers.

Navigating international eDiscovery debuted as a top-five challenge for legal departments in Fulbright's 2022 survey. The variety of regulations and jurisdictional variance breeds uncertainty. This article summarizes key considerations for successful global discovery:

Uncovering the Truth: A Global Guide to eDiscovery and AI - Ensuring Defensible eDiscovery Processes

Ensuring legally defensible discovery is crucial for avoiding evidence challenges that derail cases. If opposing counsel can credibly argue discovery violations compromised data integrity, judges may impose sanctions or adverse inferences. This severely undermines case merits, as happened to Morgan Lewis client Flavor Hold Co. in a 2019 trademark suit. The court disregarded Flavor Hold's key evidence and witnesses due to discovery abuses.

Avoiding such catastrophic outcomes requires proactive planning and process rigor. Organizations must implement and follow eDiscovery protocols that align with case law standards of reasonableness and good faith. Key elements of a defensible workflow include:

- Deliberate validation of search terms and algorithms to avoid overlooking important evidence. Sampling from control groups checks for underinclusive results.

- Quality control checks during document processing and review to catch errors like incorrect culling. Using advanced analytical tools prevents biased manual errors.

Lawyers and legal commentators stress designing end-to-end "rules of the road" for eDiscovery with robust audit trails. Defending methodologies requires evidence of careful planning, not just ad hoc workflows. Courts scrutinize whether teams made reasonable good faith efforts.

AI and advanced analytics enable greater eDiscovery rigor. Algorithms reliably apply objective, consistent workflows for culling, prioritizing, and filtering data. This minimizes bias risks from selective manual review. Detailed audit reports document transparency, while email analysis and activity profiling uncover collection gaps.