By Richard J. Ford, Esq.
The use of various platforms for analytics and technology assisted review has become accepted in our industry. It has gone from an “interesting idea” that clients were hesitant to try to something that is commonly used – in cases of all sizes and complexities. Usually the discussion around these platforms is focused on finding responsive documents to produce from a large data population, with the goal of reducing the time and costs associated with attorney review.
We totally agree with those benefits. But that’s only half the picture.
Analytics technology can also be leveraged on opposing party productions (and third-party productions too, for that matter). In fact, our in-house managed attorney review team here at BIA has been doing just that for some time and is seeing analytics used more and more on opposing party productions – sometimes even by firms and corporations that didn’t use analytics during the review of their own data.
Clearly, not all data received from opposing parties will be important, and much of it likely won’t even be especially relevant. But, of course, that’s because it’s not up to opposing counsel to help you find the smoking guns and win your case. And so, your legal team must review all that received data to determine what can be used to help prove your case. Too often today, that translates into large sums of billed attorney time.
Attorneys (and their clients) really don’t want to spend time and money looking at unnecessary or unimportant files, nor should they. By using those same analytic tools, your legal teams can quickly eliminate unimportant data and zero in on the most critical documents. Even if search terms or analytics were used to help identify the data for production in the first place, it still makes sense to use technology to dive into that data once you receive it to better understand what it can yield – and quickly.
How the Technology Works
Using analytics on opposing party productions offers some great conceptual benefits because the technology can recognize trends and associations that are useful. While high-cost associates and partners can try to manually isolate the data that is most pertinent to depositions and trials with key terms, there is always a chance that data is missed through such manual processes.
What’s more, analytics engines can help identify files based on characteristics the attorneys may not even recognize. For instance, terms like “Detroit Lions,” “turkey,” “family” and “football” may bring back documents that contain the term "Thanksgiving," but those terms would miss any document that only mentions "Thanksgiving." Analytics technology would recognize that and bring forward the other related documents, including identifying documents that solely mentioned “Thanksgiving” if appropriate. Moreover, analytics might also help you identify issues, facts and even people that hadn’t previously been known.
While it is easy for humans to understand this Thanksgiving example, it is much more difficult to understand conceptual relationships that are not commonly known and that are more complicated. The good news is that analytic tools like Brainspace, Relativity Analytics, Catalyst Predict and others can provide insight into these unknown relationships using complex algorithms.
Having an analytics solution isolate data based on a sample set allows the attorneys reviewing the opposing production the ability to focus on the documents that are highly likely to be the most pertinent and important to the case. They can then use those documents to find more documents on similar topics, even if not clearly related. It’s similar, in its core, to how Amazon suggests other products you might be interested in based on analytical/conceptual similarities.
Documents designated as "hot" during a review of the client’s data become seed documents in the opposing production analytics workflow. Using these seeds, we identify similar documents produced by other parties with little to no input from our client’s counsel. Moreover, if analytics operations are performed on a party’s own data, we can leverage tools, like email threading, near-duplicate identification and clustering, to identify common documents between the data sets. If our client has yet to produce and has not had analytics performed on their data, we strongly advise spending the pennies per document to identify potential smoking guns before the production is provided to the other side. It’s an excellent insurance policy and helps the trial team prepare for what exhibits they may see in depositions and trial.
Why It’s Worth the Cost
The best part about using analytics on opposing party productions is that the benefits typically far outweigh the costs. Here are just some of the benefits:
- Enables attorneys to quickly and efficiently identify key documents, including potential deposition and trial exhibits, soon after a production is first received
Gives the case team more time to focus on the key issues
Allows attorneys to catch things that search terms alone may miss
Saves significant billable hours, which, in turn, helps justify the analytic solution’s cost
Eliminates time spent endlessly searching databases trying to locate hot documents and reviewing material that isn’t helpful
Minimizes the risks that critical data might be overlooked
- Empowers attorneys to be better prepared, conduct better depositions and trials, and obtain better results for their clients
Sometimes opposing party productions may be small, such as 1,000 documents, which can be reviewed quickly without the use of additional technology. But that is not typical. Most cases have many thousands or millions of documents from opposing party productions that need to be reviewed.
It’s also good to be aware of the limitations of analytic tools. For example, documents that are number-intensive or excel files that have a lot of formulas may not yield the same kind of results that more text-based documents will. Those files may need to be analyzed in a different way, and possibly by a review team, to determine the relevance to the case.
Properly employing analytics solutions to opposing party productions reduces the time it takes to find the most important documents, helps reduce errors and oversights, and it can even provide a significant return on investment. Ultimately, this technology will produce better outcomes for clients who are willing to step up to use it.