But documents produced for opposing counsel should normally be reviewed by a person before they go out the door, said Caitlin Murphy, a senior product manager at AccessData, which makes e-discovery tools, and a former attorney herself. It's a time-consuming process, she said, but it was "a big mistake" for the email to have slipped through.
Such errors aren't uncommon, however, and probably happen in a lot of cases, Hall and Murphy both said. They are sometimes caused by software, but more often they result from human error, Murphy said, perhaps because keyword searches weren't properly constructed.
"In this case, it just so happened that the document in question was a crucial one," Hall said.
In fact, e-discovery is creating all types of problems for lawyers. The Federal Rules of Civil Procedure were updated in 2006 to include all forms of "electronically stored information," but grey areas remain, and most lawyers don't know all the rules, Nextpoint's Madhava said.
In addition, services like Facebook and Twitter are greatly increasing the volume of data that needs to be processed, and the fast-moving world of technology makes complying with the rules a moving target.
"Lawyers are slow to adapt," said Murphy. "Lawyers like paper and we're slow to adapt to these things."
In a recent case in Illinois, she noted, a team of lawyers accidentally handed 159 privileged documents to the opposing counsel because they misunderstand how their e-discovery software worked. The software flagged the documents as privileged, but the lawyers didn't realize they had to remove them manually before the file was sent to the opposing side.
Help may be at hand. Vendors are working on "predictive coding" technology that could automate the time-consuming review process. Legal staff feed documents into the system, tell it what disclosure category they fall into, and the software uses algorithms to apply those decisions back to all the remaining documents.
"It's kind of the new kid on the block," Murphy said.
A lot of lawyers approach the technology with trepidation, she said, because they're reluctant to trust a machine to ensure they'll produce the right documents. And courts have yet to sanction the software's use.
"However," Murphy added, "there have been several studies showing that these machines that apply the algorithms are actually more accurate than human reviewers."
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