National Press Club

E-Discovery raises concerns for small business, individuals

April 16, 2013 | By Monica Coleman | mcoleman@insidecapitolhill.net

Tejinder Singh, member of the National Press Club Newsmakers Committee, introduces panel discussing the threat software poses to the legal profession at the Press Club, April 15, 2013. From left: Jason R. Baron, Judge John M. Facciola, Singh, Jeane A. Thomas and Paul Starrett

Tejinder Singh, member of the National Press Club Newsmakers Committee, introduces panel discussing the threat software poses to the legal profession at the Press Club, April 15, 2013. From left: Jason R. Baron, Judge John M. Facciola, Singh, Jeane A. Thomas and Paul Starrett

Photo/Image: Noel St. John

New legal discovery technology that allows litigants to quickly and successfully retrieve evidence from massive amounts of data may be difficult for small businesses and individuals to obtain, according to an expert panel that appeared at the National Press Club on April 15.

Big businesses and wealthy individuals have access to the new system through law firms specializing in the software and in preemptive management plans that structure business computers to help clients if litigation occurs, according to the expert panel.

Electronic communications, such as emails and Word documents are now discovery options. Most computer hardware can store upwards of a million pages, resulting in time-consuming and expensive discovery.

“Keywords are no longer effective,” said Jason R. Baron, director of litigation for the National Archives and Records Administration. Lawyers seek all relevant documents in response to production requests and need better, more advanced methods to access them, he said.

The new technology is software that works on clustering mathematical algorithms and predictive analytics, he said. By coding relevant parameters into the program, it searches and identifies the documents, removing the need for large pools of discovery lawyers.

The technology does not replace lawyers, but requires them to use different skills, said Jeane A. Thomas, a partner in the Crowell & Moring Antitrust Group and chair of the law firm's E-Discovery and Information Management Group. Lawyers must be very smart in coding the program. Litigation costs are also a factor in promoting the technology, she said.

“I am among a group of ever increasing number of judges who are desperately concerned about the cost of all this [litigation],” said Federal Judge John M. Facciola, U.S. magistrate judge for the District of Columbia. Noting a case that cost $982,000, Facciola pointed out that only about 1 percent of filed cases go to trial.

Judges do not want to “watch the federal courts and the state courts be the playground for the very rich," Facciola said.

Judges don’t know if the technology provides advantages for small businesses and individuals but believes that the system can be scaled down to size, said Facciola. There is a medical malpractice case that will be revolutionary and may determine if the procedure works for individuals, he said.

Courts are taking action against litigants who mishandle E-discovery, which include costly sanctions, disallowing witness testimony or even causing adverse presumptions. This can be particularly devastating in criminal cases, Facciola said but he acknowledged this is an area where they are struggling.

There are resources available for small businesses, such as EDRM.net, NextPoint.com, Nuix and regional source providers for access to the technology, said Paul Starret, UBIC chief global risk officer & counsel. The next level is for state lawyers and courts to implement the system.

Access to the less wealthy clients may improve as the procedure becomes more commonplace and resources become better known. Yet, the new procedure mimics other areas of law – it works better for the rich, according to the panel.