Context determines meaning, best illustrated by the word “trunk” (trunk of a tree, trunk of a car, trunk of an elephant). Words are the weapons of litigation, and there is always a struggle over the meaning of words contained in the documents, voicemail, chat logs and other forms in which the words have been presevered.

Meaning is at the heart of communication, and words provide the building blocks of meaning. Phrases, paragraphs & entire documents can only be truly understood by determining the context in which they were written.  Because our primary interests are typically determining intent and possession, we are interested the words custodians are using in context. 

Traditionally, opposing litigants have agreed on keywords.  These keywords are run against the sea of words in a litigation dataset.  This is the standard method within the industry.

Arguments that the traditional “keyword” approach is a viable solution for extracting meaning out of litigation data is fallacious, because words must be understood in their context to determine their meaning.  Keywords lose significant amounts of meaning when they utilized and then presented without context.  Here, we present three types of context relevant to investigation in litigation.

Situational Context.  Metadata allows us to investigate a sea of words in a litigation data set for thier situational context.  What is the situational context of the custodian?  Did the custodian possess the document?  How did they utilize the language in the document?  To whom did they send the document?  Most important, why did they send the document?  What was their intent?

Verbal Context.  What are the surrounding documents saying?  What is the substance of these communications?  Why do these communications contain certain keywords?  Merely stabbing at a dataset with keywords cannot establish answers to these questions. 

Social Context.  What are the social variables?  How do custodians communicate, in terms of culture and style?  How does the social relationship look between the custodian and her colleagues?  How much dialogue is occurring between specific parties?  Is dialogue kept internally, or is it being shared with others?

A New Solution

We can leverage document metadata and content to help establish context for words and documents in which they appear.  Prior to the meet and confer, we can select one or more of the key custodians in the matter, and index their e-mail and electronic office files utilizing a tool like Clearwell.  Clearwell builds discussion threads around e-mail, presents linguistic-based “topics”, and builds a host of document filters.  With these tools at our disposal, we can quickly and deeply understand the situational and verbal context of key words. 

Visit  www.therainmachine.com to schedule a Clearwell presentation.

Not being able to collect all of the ESI you really need from your client because of high EDD costs is like trying to win the 50-meter freestyle with a torn speedo.

Collecting and processing ESI under the traditional process (Collect-Process-Review-Analyze) is costly.  In many cases, the costs of e-discovery puts litigators in a position where the scope of discovery simply has to be limited.  In recent conversations with leading law firms, we’ve found that many are viewing early case assessment (ECA) tools as an opportunity to expand discovery requests. ECA allows firms to tweak the traditional process (Collect-Process-Analyze-Review). 

It seems fair to argue that if a firm litigation team can expand their collection, their clients overall interests will be better served. We estimate that compared to the traditional model, using an objective culling tool like Clearwell or MetaLINCS will allow litigation support professionals to collect between 30% to 50% more data.

Visit this page to download an interactive spreadsheet that compares litigation processing and review costs of the traditional EDD Process to the processing and review costs incurred when leveraging ECA (Early Case Assessment) Tools.

It is easy to become so process-oriented that we try to re-invent the solution wheel every time a new case comes up. The problem (or goal) defines the solution, says the conventional wisdom. I strongly agree.

When my daughter asked me to build some dollhouse furniture, I didn’t rush out and purchase an industrial lathe (I’ll shamelessly admit, however, that having a new power tool around the house can be the emotional impetus for devising some new project. The trouble seems to be actually finishing the project…).

It seems worth noting that the emerging tools are often created because some of the traditional approaches, traditional services and traditional tools haven’t responded to the shifting ESI landscape, and aren’t resolving the problems firms and corporations face. These problems include but aren’t limited to: ESI growth and variety, challenging legal requirements, economic and time pressures.

It is difficult for me to label today’s emerging early case analysis and concept search tools as “off the shelf” (one can’t pick up a copy of MetaLINCS at CDW.com). Unlike lathe makers, the makers of these emerging tools receive ongoing, dynamic input from the lit support pros in our industry and development is typically driven based on this input.

The creators of these emerging tools are building them with previously unaddressed problems as their focus; the technology is intended to be at least part of the solution; at the very least, they have potential to re-shape conventional approach(es), and often move the industry forward.