Bennett B. Borden (IGI Founder & Chair) and Jason R. Baron (IGI Co-Chair) were recently published in the Richmond Journal of Law & Technology. Click here to read the full article: Finding the Signal in the Noise: Information Governance, Analytics, and the Future of Legal Practice, 20 RICH. J.L. & TECH. 7 (2014). Borden presented the paper at a recent symposium entitled “Information Governance: A Comprehensive Approach to e-Discovery,” held at the University of Richmond in Richmond, Virginia, on February 28, 2014.
In their article, Borden and Baron make a compelling case for applying predictive coding and other analytical techniques developed in the context e-Discovery to Information Governance issues outside of the litigation context. The article begins by tracing the history of the development of e-Discovery from the days of manual review to keyword searching to the 2012 Da Silva Moore case, the first to give judicial approval to the use of predictive coding. Borden and Baron argue that predictive coding and other analytical tools used to find “the most relevant needles (i.e., facts) in the Big data haystack” in litigation could be used to analyze other matters in which relevant information needs to be mined from mountains of data. They also provide several “true life” examples in which the techniques they advocate were used in practice both in a litigation and non-litigation context (e.g., internal investigations). More than just reducing costs, they argue, advanced analytics can be used to get at the relevant facts, faster. This earlier, more accurate picture of what happened confers a strategic advantage.
More than just reconstructing the facts of a past event, Borden and Baron posit that advanced analytics could be used prospectively—vetting political or senior management candidates, for example. They also discuss the use of such tools to predict and prevent future bad behavior. The authors note, for example, that people who commit fraud are often experiencing negative life events (divorce, financial problems, gambling, etc.), traces of which they leave in the electronic data they produce, which can of course be mined to predict where trouble is likely to arise. The use of analytics in records and information management is also discussed. In short, the applications of predictive coding and other analytical techniques to non-litigation problems are manifold. As those tools continue to improve, their primary limitation may be our ability to think outside the context in which they were developed to imagine where they can be applied.
“We are now in a post-Da Silva Moore, “Big data” era where lawyers are on constructive (if not actual) notice of a world of technology assisted review techniques available at least in the sphere of e-Discovery. The proposition being advanced is that the greater revelation of Da Silva Moore is how similar the techniques being put forward as best practices in e-Discovery fit a larger realm of issues familiar to lawyers, many of which fall within what is increasingly being recognized as “information governance” practice. It is here where we can break new ground in our legal practice by recommending the use of these advanced techniques to solve real-world problems of our clients…”