Small Case E-Discovery

Small Case E-Discovery in a Big Litigation Business

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Global Advisory Board Chair Ari Kaplan, a legal industry analyst and principal of Ari Kaplan Advisors, moderated a conversation for the ACEDS community about small case e-discovery with Tom O’Connor, an independent e-discovery consultant and the Director of the Gulf Coast Legal Technology Center.

The Sedona Conference Primer on Managing Electronic Discovery in Small Cases served as the inspiration and foundation for this discussion. To begin, O’Connor suggested that “A million records, not pages, or fewer is generally considered a small case,” and that large law firms or corporations have a combination of smaller matters in their portfolio as well as the larger disputes that drive much of their activity.

He advised that the strategy for managing a case typically depends on the timeline of the matter, the type of data, such as email, text messages, and mobile communications, among others, and the available technology. “The obligation to preserve the data, however, has increased the volumes enormously making cases bigger and requiring tools to process it faster,” he explained. “AI, of course, is everywhere now, but you have to ask what it means and the type of AI to which you are referring,” he added offering chatbots, voice recognition tools, dictation applications, and many others as examples.

O’Connor distinguished between the current application of generative AI in large cases compared to smaller disputes. “Maybe you could use a generative AI tool and a large language module if you can afford it, and if you have a vendor who knows what they’re doing with it, but if you have under a million records, generative AI is not going to be of much help, and probably will not be cost-effective,” he remarked.

“The real problem with ChatGPT in the wild is it just wants to answer the question,” he added recommending that legal professionals truly understand how the data at issue is saved and employ effective quality control protocols. “When you start searching and culling, consider performing illusion testing,” he said.

O’Connor cautioned that in certain cases litigants are required to save the entire data set, such as to satisfy legislative or regulatory requirements. As a result, one should develop a defensible plan, supported by an internal expert, possibly with a CEDS certification, such as an experienced paralegal or associate, or a talented outside team if there is insufficient staff. “If I do my job properly, I don’t get a lot of repeat business,” he joked. To gain experience with smaller matters, O’Connor emphasized that “You have to get your hands dirty and do it as much as possible.”

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Ari Kaplan
Ari Kaplan, an attorney and legal industry analyst, is an inaugural Fastcase 50 honoree, a fellow of the College of Law Practice Management, and a finalist for the International Legal Technology Association’s Thought Leader of the Year award. He is the author of Reinventing Professional Services: Building Your Business in the Digital Marketplace (Wiley, 2011) and The Opportunity Maker: Strategies for Inspiring Your Legal Career Through Creative Networking and Business Development (West Academic, 2nd Ed. 2016). Kaplan serves as the principal researcher for a variety of widely distributed benchmarking reports, has been the keynote speaker for events worldwide, and is the founder of the Lawcountability® business development platform. He is also a two-time Ironman triathlon finisher.

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