July 2012 Bench & Bar 31 A s always, information is in the lifeblood of the law. So “Big Data,” as with other developments in comput- ing and electronic information, promises change in how we practice. The analo- gies range from possible life-giving transfusions to terminal toxic sepsis. “Big Data,” as best I can relate, refers to 1) The bigger and bigger collections of data we have access to, public, pri- vate or proprietary, from your desktop to Google; 2) that are “computational” in that a computer can powerfully analyze that data so as to; 3) find patterns or identify character- istics – indeed, make conclusions - that otherwise would require immense resources to do so. Data collections have always been the subject of discovery and investiga- tion, so at first glance this doesn’t seem novel at all. But it is the “computa- tional” access to meaning in huge data sets that changes what we might find. This has been referred to as “data min- ing” or “business analytics” for the discovery of knowledge out of massive data. It has even been called “Knowledge Discovery in Databases” (KDD), a term I like. The computers quickly find what would otherwise take a thousand parale- gals a thousand years to find. Investigation and Discovery So these tools naturally lend them- selves to the investigation of facts relevant to a case and discovery once a case is underway. Most lawyers have already done so, at a very basic level, via the transparent services of the Google search engine. Google’s massive collection of Internet-available informa- tion is organized and relevance- weighted by Google’s internal analytics. Those Internet-available postings by or about a witness or a party have been of value to enterprising lawyers, even where that information was not intended for public dissemination. (I use the term “Internet-available information” rather than “public information” because big search engines, like street sweepers, col- lect everything placed out in the open, whether someone meant that or not.) Non-private data analytics may help avoid ethical or legal issues with pretex- ting to gain access to Facebook and other social media. Discovery analytics applies similar tools to a client’s collection of electronic information to ferret out relevant discov- ery responses without using a thousand paralegals. This is a growing business in corporate litigation, with companies like, IBM, Kroll Ontrack and Deloitte Discovery offering automated document review systems to reduce litigation costs. Preventive Law But futurists Bruce Barnes and Thornton May suggest “Big Data” offers much more for the relationship between lawyer and client. In their recent pro- gram at the University of Kentucky, May out- lined the benefits of a new alliance between those who maintain the information of a busi- ness and the lawyers who advise the busi- ness. From the protection of intellectual and data prop- erty to regulatory compliance, they argue that lawyers can use ongoing ana- lytics to observe and monitor the data personae of clients as alert and protect them as issues develop, not just after when damage may have been done. This goes beyond compli- ance training and responses to inquiries. It moves the lawyer and the IT specialists together to guide oper- ations within the law, themselves guided by analytic systems in place of a thousand paralegals. Barnes and May focus on this rela- tionship between the chief information officer of an enterprise and its general counsel, one where the significant resources needed and expensive possi- ble risks may be quickly matched. Yet this may have potential for much more for service to clients of all stripes and budgets. The changing market for analytics increases the power and reduces the cost. Even small enterprises may now be able to take advantage of this relationship with their counsel to protect themselves. A la carte services are popping up, such as services that help monitor comments made about a business that may impact reputation, services that track searches for a partic- ular business or person and services that protect identities. This offers intriguing possibilities for the relationship between a lawyer and client, offering the tradition of a close relationship by information in a cost- effective manner. 1 Yet any such activity relating to lawyer and client must always be seen through the lens of professional respon- sibility. That may be as arduous a Michael Losavio SHOP TALK THE BIG DATA ROLE OF THE LAWYER continued on page 33 Bruce Barnes Thornton May