John Henry, He Was An ESI-Drivin’ Man…

A good article (“Tech Firms Pitch Tools for Sifting Legal Records“) from the Wall Street Journal hammers out some of the tension between automated e-discovery tools and the hesitancy of lawyers and law firms to embrace “the machines.”

John HenryIn reading the piece, Carolyn Elefant on the Legal Blog Watch was reminded of John Henry, the steel-drivin’ man who beat a steam-powered machine in hammering railroad spikes, but died in the process.

Ron Friedmann believes that the article “oversimplifies the issue” of “lawyers trying to protect their billable hours, … but does alert corporate managers (think CFOs and CEOs) … to more cost-effective ways to approach litigation.” Like Ron, I’m just glad to see coverage of the topic in the WSJ.

The WSJ piece reports on how HP, Xerox, EMC, and IBM have jumped into the market of providing automated solutions for collecting, preserving and producing electronically stored information. The fact that these companies have taken a bite of the e-discovery industry tells you that they see something important and profitable.

Here’s a great example from the story:

“One company saving some cash is Comcast Corp. When outside lawyers working for the cable company recently requested thousands of archived documents for a court case, Genny Garrett, who is in charge of managing Comcast’s records, found them by doing a search from her desktop computer. The lawyers ‘were surprised,’ she says, that ‘they didn’t have to wander around a warehouse’ looking for records, a task that once generated big legal fees.

Comcast uses software from Tower Software, which was recently acquired by HP. Comcast is obviously very happy with their purchase:

“[The software] archives and classifies employee e-mails and other documents as they are created. The system also creates inventories of paper records, Ms. Garrett says, so she can locate and retrieve documents by using computer searches. She says the software has saved thousands of attorney hours over the past few years because Comcast gets about 400 legal-search requests annually, many related to claims that arise when technicians visit customers’ homes.”

I do take issue with a comment in the piece from Michael Lynch, chief executive of British software company Autonomy Corp., which last year acquired e-discovery company Zantaz for $375 million:

“Lawsuits increasingly rely on electronic documents being produced early on, feeding demand for tools that help archive and retrieve those records, a process known as e-discovery work. Much of that work requires little brainpower or legal training, says Michael Lynch.”

Perhaps Mr. Lynch is simply referring to the “hit this button” simplicity that some of these systems theoretically provide once they are properly set up and completely integrated into the enterprise-wide information systems of a company. Pressing a button does not require a lot of “brainpower or legal training.”

But implementing systems like what Zantaz offers requires an incredible level of sophistication and experience. Otherwise, the project will fail at worst, or at best bleed a lot of money. I would guess that Mr. Lynch would agree and offer the experience of the professionals at Autonomy/Zantaz to ensure a smooth rollout.

Otherwise, you might have this scenario:

Robert Brownstone, [a partner with Fenwick & West], tells of one client who declined to have attorneys oversee an email archives search, thinking internal IT staff could do a cheaper automated search. The IT workers disposed of files that, legally, had to be retained, he says. They were recovered, but only after the company paid Fenwick lawyers extra to fix the problem

I have seen this first hand – a law firm will offer to assist their big corporate clients in identifying and collecting relevant ESI for a litigation matter, only to have the client decline the help. In-house counsel are easily persuaded by internal IT resources that believe they can accomplish the job and save immensely on the associated costs.

No one can blame in-house lawyers for wanting to save on external legal expenses. And I believe that’s why we are seeing so many more corporations like Comcast taking a bigger role in managing their internal data with an eye towards being better prepared for inevitable litigation matters.

So to be fair to both sides, automation in discovery is coming and coming strong – there is no denying that. But it is immeasurably important to have the crucial legal analysis involved as well. True a machine may be able to drive railroad spikes quicker, easier, and more efficient than a man with a hammer, but someone still has to flip on the switch at the right place and at the right time.

Link to WSJ story.

UPDATE Monday, Aug. 25, 2008: Michael Lynch’s comment (“[e-discovery] is work that requires little brainpower or legal training”) got under Ralph Losey’s collar too:

“This comment demonstrates a real antipathy between Law and IT. It also illustrates a lack of understanding or appreciation as to what each side [law and IT] really does. … For most of my career, the IT guy (and yes, it always used to be a guy) received about as much respect in a typical law firm as the copy machine repair man – not very much. Even when they were later hired as full time law firm employees, techs were (and in some firms still are) considered rather dimmed witted necessary evils, with lower status than secretaries, and nowhere near the status of a paralegal.

…This antipathy leads to widespread misunderstandings and miscommunications between lawyers and computer technicians. This is just mildly annoying for most lawyers and techs, but for specialists in e-discovery it is a disaster. That is because e-discovery is a blend of the two professions. It can only work properly when lawyers and techs work together and cooperate.”

Ralph then provides an outstanding example of the communication breakdown that regularly happens between law and IT by eloquently analyzing¬†Kevin Keithley v. The Home Store 2008 U.S. District LEXIS 61741 (August 12, 2008) (.doc format, graciously hosted on Ralph’s blog).

A few more choice quotes from Ralph (the whole entry is lengthy, but WELL worth a read-thru):

“…the practice of law is an art, not a science, and the human element can never be replaced by technology.

Information Technology and the Law are both honorable occupations. We must learn to work together to meet the challenges of e-discovery. This is a plea for mutual respect and cooperation.”

Link to Ralph’s post entitled Tech v. Law – a Plea for Mutual Respect.

2 comments ↓

#1 Benjamin Wright on 08.26.08 at 12:08 am

Brett:
E-discovery reflects the natural collision of technology and legal practice. As an enterprise creates an ever-growing mountain of records, adversaries of course want access to it. Knowing that litigation and e-discovery are inevitable, an enterprise can use technology proactively to make records more benign. What do you think? –Ben http://hack-igations.blogspot.com/2008/05/nix-smoking-gun-e-discovery.html

#2 Mike Lynch on 08.27.08 at 3:11 am

It is a great irony that my quote in the wall street journal article has been interepreted by some in exactly the opposite way in which it was intended. The original quote given was “You would literally have lawyers reading through things saying ‘ there was chicken for lunch.’ You don’t need lawyers to know it’s a lunch menu, by using the technology it frees up the highly trained e-discovery experts to turn their attention to the matters that need them” . Whilst it is a shame the original quote was edited down, its also a leap to assign that the e-discovery technology world feels the e-discovery experts are ‘morons’ . It is a shame the article came out as some sort of confrontation rather than the collaboration interview I gave (Although I cannot comment on what others may have briefed on).
So the comment “Lynch says e-discovery work ‚Ķis work that requires little brain-power or legal training” bears no relation to what I said and although less clear the article itself.
I guess this episode it shows the importance of facts rather than assertion of views of actions to a person and also the ability to go back and check them…e-discovery in action?

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