and professional services at LexisNexis. “It’s not uncommon for attorneys to sort through and make sense of upwards of 300 terabytes of data when preparing for a case [and] the massive volume of data simply outpaces the capabilities of traditional technology tools to process that much information in a timely fashion.”3 There is so much hype around big data that it requires some tempering. It reminds us very much of the hype around “predic- tive coding” in e-discovery. More data is not necessarily a good thing. Sometimes, more is simply more—and therefore increasingly complex to manage and secure. There is no way to cover all the impli- cations of big data in anything less than a book. So we’ll try to give you a sampling— a cornucopia of exciting possibilities and unsettling complications. Let us begin with lawyers.
Using Big Data to Evaluate Law Firms
This is the most frightening possibility to law firms—especially large law firms—that clients will begin to use data analytics to evaluate law firms in a far more precise fash- ion. If, as is so often the case, a large client spreads its work among ten to twenty firms, it can aggregate data to determine how much it is being charged by different firms for similar work, what percentage of the work is being done by partners vs. associ- ates, what the hourly rates are and the totals for similar work, what percentage is based on value billing and how much is being billed for travel and other expenses. Comparisons between law firms will be much easier to make as analytic tools are applied. Clients may even analyze the extent to which fees and costs come down after a “Come to Je- sus” meeting with law firms—and how long the effects of the meeting appear to last. Management committees at large firms
are going to have a serious case of the wil- lies when such practices become common- place. Clients will certainly look at measure- ments of success—percentage of trials won, successful outcomes in arbitration or con- tract negotiations. They may also evaluate the data and conclude that they can use a boutique firm in North Carolina for far less than a megafirm in New York City. Clients and lawyers will together use ana- lytics on big data to help predict case out- comes. Think of it as a real world applica- tion of the movie Runaway Jury, where ev- erything (almost) was known about the ju- rors. We may learn from large databases of realtime search terms what legal issues are troubling particular communities. Risk man- agement attorneys may be able to figure out where their clients are most likely at risk from studying government data. Analytics software can speed up manage- ment tasks, such as distributing cases, pro-
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jecting revenues, projecting case budgets, projecting revenues and—most important of all—predicting outcomes. All of this could help determine that most elusive of client dreams—a fee estimate that makes sense based on previous matters involving similar factors. With all this, it is also possible that law firm management budget forecasts may be more reliable. Is there an ethics and security impact? Yes,
of course. The more data we have in more places, the greater the chance for securi- ty holes. Are lawyers required to take rea- sonable steps to protect client data? Once again, yes. How easy is it to define ‘reason- able’ in the age of big data? That question is much less easy to answer and very few peo- ple in the legal field have begun to discuss it, much less reach conclusions.
Big Data in E-Discovery
This was certainly one of the hottest top- ics at LegalTech in January 2013—and it was completely absent in January 2012. Why is there so much interest? Perhaps because it could be the harbinger of another e-dis- covery gold rush. The same new technolo- gy that users employ to understand big data can be used for e-discovery of big data—to an industry that has remained married to per gigabyte pricing, the thought of REALLY BIG DATA has vendors salivating. Add to that the fact that big data comes with lots of errors and is messy to corral and vendors are lusting after it. Not many folks in the e-discovery world knew much about Hadoop or other analytic software two years ago, but now everyone seems onboard that train.
A huge headache in e-discovery has been
the large amounts of unstructured data, in- cluding e-mails, word processing docu- ments, social media communications, etc., constituting a huge volume of data subject to e-discovery. The new predictive analytic tools make help make sense of the tsuna- mi of information, and give attorneys fast- er, more reliable access to potentially rele- vant data that needs to be processed and reviewed. The famous (or infamous) predic- tive coding that has stormed the e-discovery landscape makes use of predictive analytics. As commentators have consistently said, this is an evolving area and we will find technol- ogy-assisted review morphing with technol- ogies and continuing analysis of how to im- prove the process by experts in this field.
The Eye in the Sky: A Hot New Big Data Topic
We used to think of drones as military ap- paratuses. No longer. For a measly $300, you too can be the proud owner of a cam- era-equipped drone. The higher end drones can cost tens of thousands of dollars and
THE VERMONT BAR JOURNAL • FALL 2013
have lots of commercial buyers. Real estate agents use them for aerial photos and vid- eos. Wildlife researchers and search and res- cue groups employ them. There are lots of legitimate uses—no doubt of that. But voy- eurs may also love “the eye in the sky.” How much privacy you might have in your yard, or in your home, may be changing. It would be illegal under many state laws to hov- er a drone outside your bedroom window, but then again, who is to say who owns the drone and prove it? Law enforcement loves drones and is adopting them in record numbers. But turn- about is fair play and the Occupy Wall St. protesters had their own drone (dubbed “The Occucopter”) to monitor the authori- ties.
Who regulates drones? The Federal Avia- tion Administration does if they operate at four hundred feet or higher. If the drones operate lower, they must follow model air- craft rules. Many of the rules are being put to the test by a drone-happy populace and, yes, the data collected will certainly fall un- der the heading of big data over time. Concerns about governmental drones in- vading privacy are regularly voiced by pri- vacy groups—and in 2013, a bill was intro- duced in Congress to regulate the use of drones by authorities. Twenty state and local governments were legally operating drones by May of 2012. With the federal govern- ment allocating billions for drones, experts expect the state and local drone obsession to intensify as well.
Other Privacy Issues with Big Data
Everyone, by now, has probably heard about the Minneapolis teenager who re- ceived all the ads for nursery furniture and maternity clothing after shopping at Target. Whatever she searched for was duly record- ed and used to send the ads. Her parents were more than a little surprised to find out that their little girl was pregnant after they complained about the ads.
Facebook has a huge amount of our data.
In fact, it has more than some people think because they never read the Terms of Ser- vice, which allow Facebook to monitor your online activities while you are logged in. That very valuable data is sold to advertis- ers so that they can have ads related to your online activities pop up or show on visited web pages. Not so bad if you’re search- ing for a new car, but what if you hang out (while married) in dating sites? Or you fre- quent pornography sites? What are you do- ing online that you’d prefer to be kept pri- vate? How about searching for help in treat- ing a substance abuse problem? Or how to file a bankruptcy? Perfectly innocent activi- ties certainly deserve to be private but pri- vacy is eroding fast in the big data world. We just don’t think about our digital priva-
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Big Data
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