The other day, Michael Clark of EDDix sent me a fascinating academic paper (thanks, Michael!) about “information inflation” at its impact on the legal system. I had never really thought of it this way, but there have really only been 3 significant events in the evolution of information:
- Writing (c. 5,000 years ago): Pre-historic man started to etch his markings on clay tablets, stone, wax, papyrus, bark, cloth, wood, paper, cave walls and anything else that came to hand.
- Printing (c. 1450): Gutenberg’s movable type printing press enabled mass production of information, contributing to (among other things) the Renaissance and the Scientific Revolution.
- Digitization (c. late 20th Century): The personal computer, wide area networks, internet, email, have all led to a massive explosion of information in the past 50 years. As the article points out, “close to 100 billion emails are sent daily…In a small business, whereas formerly there was usually 1 four-drawer file cabinet full of paper records, now there is the equivalent of 2,000 four-drawer file cabinets full of such records, all contained in a cubic foot or so in the form of electronically stored information.”
How can the legal profession cope, given that a lawyer’s job is often to synthesize this mind-boggling amount of data? Fortunately, the authors have a solution:
“A family of computer technology employing new types of search methods and techniques beyond use of mere keywords should now be considered for use in litigation….Litigators can no longer depend on manual review alone. It is too time-consuming and expensive – with cost often exceeding the amounts in dispute.”
To illustrate its point, the paper tells the story of the White House and the problem of a billion emails. During the Clinton administration, the White House agreed to a form of electronic record keeping called ARMS (Automated Records Management System). At the end of each administration, these records are handed over to the National Archives and Records Administration (NARA). The table below shows the number of stored emails NARA has, or expects to receive at the end of each administration.
Now assume that, like previous administrations, the Next President’s administration is subject to a lawsuit that requires e-discovery. The paper calculates:
“Without employing any automated computer process to generate potentially responsive documents, the review effort for this litigation would take 100 people, working 10 hours a day, 7 days a week, 52 weeks a year, over 54 years to complete. And the cost of such a review, at an assumed billing rate of $100/hour, would be $2 billion. Even, however, if present day search methods are used to initially reduce the email universe to 1% of its size (i.e., 10 million documents out of 1 billion), the case would still cost $20 million for a first pass review conducted by 100 people over 28 weeks, without accounting for any additional privilege review.”
This is a great example of why companies and government agencies are adopting e-discovery 2.0 technologies that go far beyond keyword search. In the face of information inflation, what choice do they have?