From “concept searching” to “cloud computing,” every year there are new buzz words and catch phrases that enter into the lexicon of legal technology. Of course, when you are dealing with technology of any sort, you should expect to update jargon regularly (such as from 3G to 4G to 5G, whatever that means).
2011 is shaping up to be no different. This year’s “it” phrase is already emerging in the industry. It evolved from the buzz words of yesteryear, and if this new phraseology is worth its salt, these new advances could drastically change how law is practiced for years to come.
So what is legal technology’s newest terminology?
Let’s take a stroll down the memory lane of catch phrases past…
2006: Concept Searching
As attorney and technology consultant George Socha pointed out in this article in 2003, “concept search” has been around for many years. But it really began to catch fire around 2006. In the industry, concept searching grasps various aspects of text that are basically saying the same thing and groups those documents together. That makes it much quicker for the attorney reviewing documents to determine whether they are relevant to discovery. Concept searching is still very popular among a variety of vendors.
The review tool that really put concept searching on the map was Attenex Patterns. When the consulting company FTI acquired Attenex in 2008 for a $88 million, it was the talk of the town, since apparently Attenex had only been valued at roughly $25 million the previous year.
Attenex could detect “patterns” or concepts in text and match them accordingly. For example, a series of “out of office reply” emails would be bunched together for viewing in one batch. Right away, you could probably tell that would not be relevant data. Attenex lays out all of this information for you on their sci-fi screen with various bubbles and orbs displaying the variety of information it has collected.
2007: The New Federal Rules
The new Federal Rules of Civil Procedure for e-discovery came into effect in December 2006. K&L Gates posted a good explanation of them. In the legal technology industry, the build up to it was as if we were approaching a new millennium. As I mentioned in a couple of posts, the new rules were all the rage at various legal conferences. Every vendor in the world, including the one I was working with at the time, was eager to share its opinions about it with various clients.
“Defensibility” did not alter the law, and it meant the same as it always did. Does your evidence pass muster? Can I get this past the judge? Will it hold up on appeal?
But why did defensibility become such an issue? Two things sent the legal technology industry into a frenzy.
First, the Victor Stanley v. Creative Pipe case, presided over by Judge Paul Grimm, a federal magistrate judge in Maryland (well-regarded as a jurist who embraces technology and the law). The defendants, Creative Pipe, had their attorney-client privilege waived when they could not adequately explain how they conducted their search processes. The case sent shock waves through Biglaw, and technology vendors and consultants scrambled to find methods that would withstand judicial scrutiny.
The second reason defensibility became an issue was the rise of legal outsourcing, both in the United States and abroad. Although outsourcing had been around for a while, it really became mainstream around this time, and raised issues such as chain of custody. As a legal consulting company executive told me then, “We started keeping logs on everything we do, well beyond what we have done usually in the past.”
2009: Early Case Assessment (ECA)
What a difference a few years make. In 2009 the economy was tanking, and Above The Law was constantly updating its layoff watch. E-discovery was a huge cost to clients, so vendors went looking for ways to ease that burden or face irrelevancy themselves.
Enter early case assessment (ECA). ECA was a way to look at your material ahead of time and determine whether certain parts of it were worth reviewing. In a step before concept searching, data is uploaded for review, and unnecessary data is eliminated to highlight data that is most relevant. One vendor that took this new term and ran with it was Digital Reef. A relatively new vendor at the time, Digital Reef had ECA as one of their mantras, and aggressively touted the fact that they could identify irrelevant data before processing. Other vendors have also focused on this.
2010: Cloud Computing
Cloud computing can be defined in one word: Gmail. Most people have a Gmail account or, at least, some web-based email account. Gmail is a form of cloud computing. Unlike Outlook, which maintains data on your hard drive, Gmail stores your messages in the Internet netherworld, a place technologists have lovingly named “the cloud.” It seems simple, although the cloud gets more complex as people collaborate over the Internet. Issues arise over control, retention, privacy, and protections, among others. For more information about cloud issues, here is a series of articles from the E-Discovery and Digital Evidence Journal of the ABA. In fact, here is an article about cloud computing that just came out this week.
And now for the next big catchphrase to hit the world of legal technology…
2011: PREDICTIVE CODING!
Computer winning at Jeopardy! Could acceptance of predictive coding in legal reviews be far behind? http://bccth.is/c1N
Since the computer was invented, technologists have worked tirelessly to find ways machines can replace humans. Of course it is no different with e-discovery. The vendor that has really taken a lead in this effort is Recommind. They have written extensively about this, and they have a review tool called Axcelerate. You can find a good review of Axcelerate predictive coding here.
In a sense, predictive coding has simply evolved from concept searching. Are we step-by-step making our way toward a time when all professional work will be handled by artificial intelligence? Perhaps. Watson, the computer that competed on Jeopardy!, was practically perfect (as Elie discussed yesterday).
So what will be the buzz words for 2012? Maybe computers will figure that out for us.
Gabe Acevedo is an attorney in Washington, D.C. and the publisher of the e-discovery blog GabesGuide.com. His articles on legal technology and discovery issues appear regularly on Above The Law. You can reach him at [email protected] and follow him on Twitter.