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By Bennett B. Borden
There is a familiar image from the 1920s of row upon row of bespectacled clerks, sporting green eye shades and clacking away on adding machines as they tracked and totaled the business of Wall Street. In the context of document review, a similar scene may still be observed; row upon row of attorneys clicking away in sunless rooms, reviewing the documents of corporate America. On Wall Street, the rows of clerks have been replaced by racks of servers. Today, with the emergence of advanced search and categorization technologies, a similar evolution in efficiency is happening in electronic discovery.
Technology has created a deluge of data
Computers have enabled the creation of the information economy - and unleashed an unprecedented deluge of data. On any given day, more information is sent via email than is contained in the entire print collection of the Library of Congress, and more data are created by American businesses than exist in every book in every library in America. As of 2002, there were 5 exabytes (5 billion gigabytes) of data stored in computers, the equivalent of every word ever spoken by human beings. As of 2009, there were about 988 exabytes of data, or roughly 64,220,000,000,000,000,000 pages of text. If printed, they would reach from the earth to the moon 75 times.1
The explosive growth in the volume of data can create a crippling financial and administrative burden on parties responding to discovery requests to identify, collect, review, and produce data.2 Perhaps exacerbating this problem is the manner in which attorneys are accustomed to conducting discovery. An attorney 20 years ago who drafted a document request for "All documents concerning [anything]" would receive in response a more or less manageable amount of information. Today, the response would be inordinately different. We are accustomed to thinking of information accrued in the course of business as an asset of significant enterprise value. But, to the extent that a particular document is likely to be the object of a discovery request, it potentially can also represent a very real liability. The cost of collection, review and production often exceeds $2 per document - and corporations produce and store many billions of documents annually.
Paper processes in a digital world
Not long ago, complying with discovery requests often meant that young lawyers would wade through mountains of boxes filled with dusty, poorly organized documents. Faced with such a task, the only thing to be done was to read each document in serial fashion. This is the quintessential linear document review: tedious, tormenting, and terribly inefficient. The introduction of computers and software applications that allow for "on-line" review replaced the flipping of pages with the somewhat more efficient clicking of a mouse. More useful still were the term searches that quickly became possible. Term searches could be used to help find relevant documents more quickly.
Unfortunately, once the term searches were executed, the data volumes that remained to be reviewed were still enormous and, for the most part, had to be coded through the old, inefficient, paper paradigm of document-by-document review. Term searches can reduce the data collection by a large fraction, but when one starts with tens - or hundreds - of millions of pages, what remains to be reviewed after the term-filtering reduction is still a significant burden to bear.
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