The term “Big data” can mean different things to different people, but typically refers to the vast amount of data that is used by companies to manage and improve their financial and operational performance. It has been increasing in relevance in litigation for several years, and is also increasingly becoming part of the arsenal for use by law firms themselves.
During the Managing Risk in Litigation conference, Alix Partners’ head of digital investigations Paul Brabant brought together general counsels and partners to discuss the opportunities, together with the challenges and risks, that come with big data.
What do we mean by big data, and how is it used?
Discussion opened with what we consider to be “big data”, with an emphasis in the rate of growth in data. “Technology has enabled us to tap into more data but there is still so much data that needs to be tapped into – 90 per cent of the worlds data has been produced in the last two years and corporate data volumes are going up by 60 per cent a month”, as noted by one of the panellists.
While discussing big data in the legal context, the panel deliberated what big data meant to each of us. Much of the discussion focused on the information that big data holds, and how it is accessed. There was agreement that big data is about people, objects, and financial transactions, but it was noted that, by way of example, an individual person wouldn’t be likely to have “big data” describing them by in isolation, with a panellist stating that “we have data about us in this big data universe. However, unless we are active, we probably don’t constitute big data”.
Further discussion noted that this shifts as soon as you start to consolidate multiple data sources. One panellist described a recent case. “We were examining multiple data sources. These might not relate to individual people specifically, but when we combined the data together we were able to use it to trace the movements of a person throughout a location. When you pull the data together, through the use of analytics, it starts to become about people.”.
A key limitation to this is that the action to perform this combination of data typically needs to be an explicit one, and one supported by appropriate legal mechanisms. One panellist said: “If there isn’t an agreement to bring the data together then you probably don’t have access to this information”.
Risks and rewards using big data effectively
Tapping into the value within big data requires technical investment and know-how, and there are plenty of areas that need to be considered, including regulatory compliance, risk management and discovery cost management. In particular, it was noted that, in the contest of a dispute, performing cost-effective and accurate disclosure exercises in a big-data world require particular attention, but that the use of this data presents opportunities to provide factual evidence and analysis to help shape arguments.
The panel agreed that it is important to be constantly alive to opportunities to use big data. One panellist has seen the opportunity to use big data to help lawyers with the low level, high volume cases. “There are opportunities in China, where you access court rulings. From that data they bring out predictions for a case but there are jurisdictional challenges in terms of what you can get.”
“[Big data] is one more piece of information that will allow us to make a decision, it seems like a great tool,” said another panellist. He added that machine learning could be used to produce a predictive model to assist with the decision-making process, using training data that had been gathered from historical cases.
A panellist noted that historical training data, typically used to train machine learning algorithms, needs to be used with care. He noted that correct calibration of the algorithm and the data is important for avoiding biases within the algorithm, citing the example of a CV screening tool. In this instance, the algorithm, having been trained using a historically male workforce, meant women were more likely to be eliminated from the process.
The importance of data visualisation
The panel concluded with agreement that, no matter how big data it used, visualisation is one of the most important mechanisms for drawing insight from the data. It is essential to use visualisation tools to build a fact base and open it up to people who aren’t necessary data analysts. This will enable lawyers to use and understand the data, allowing them to get beneath the surface of the case, one panellist noted.
Visualisations, and their ability to convey information, have allowed legal teams to be more visible and accessible, as one in-house lawyer said. “We have valuable data that justifies our existence and allows us to charge correctly. You can’t argue with it.” she said.
Sponsor’s comment: AlixPartners
As was observed over the sessions, the term “Big Data” has varying meanings to different audiences. In particular, we see that it can be seen through different lenses, such as whether it is seen as an asset to be exploited, or as source of risk that needs to be mitigated.
The effective use of Big Data be a tremendous asset to a firm, allowing insights to be drawn that would have been unavailable a decade ago. This utility has been unlocked by technologies such as artificial intelligence and machine learning, allowing patterns and trends be identified that would have remained invisible to a human observer, or advanced visualisation technologies, which convey the information to an audience in a way that allows them to effectively utilise the information. In the litigation space, the information extracted from big data can be pivotal to a case, whether that’s distilling the bare facts into a detailed factual chronology, or establishing a robust counterfactual.
Like all emerging technologies, it must also be handled with care. Inappropriate usage of big data can create business risk by providing decision makers with misleading information, or can create legal risks if captured and collected in a way that is not legally compliant and ethically responsible. In the event of litigation, the increasing volumes of, and relevance of, data in litigation adds additional complexity to disclosure processes. However, the risks of not using the data at all carries the risk that facts critical to the case may be missed entirely.
Big data, with the opportunities and risks that it brings, is very much here to stay and cannot be ignored.