Increased Complexity of Electronic Evidence Calls for Advanced Legal Technology.

With Email, Instant Messaging, Electronic Documents, and New Federal Rules of Civil Procedure, It's a Whole New World

REDWOOD CITY, Calif. -- In order to provide the best possible representation for clients, legal teams must radically change the way they look at and work with electronic data, according to Elizabeth Charnock, CEO of Cataphora Inc., a Silicon Valley software and services company. Speaking before a recent invitation-only gathering of leading law firms hosted by a Fortune 100 company, she explained that sweeping changes in the ways that corporate employees communicate with each other make new forms of computer technology an absolute must for today's legal teams.

The issues that attorneys and regulatory officials face, Charnock said, extend beyond just the potentially overwhelming volumes of evidentiary data with which they have to deal today. Certainly, in the past, business communications were more formal and limited in quantity. Today, however, attorneys and investigators are struggling to cope not only with the explosive growth in volume of electronic communications, but also with their variety. Most organizations use many different forms of communication including email messages, instant messages, mobile messages, and shared electronic documents and spreadsheets, most of them existing in multiple copies and versions. The result is that today, organizations' communications have become vastly more numerous and fragmented, and much more difficult to reconstruct and interpret properly.

"Establishing the facts of a case is considerably harder today than it was just a few years ago," Charnock said. "And this problem is only going to get more difficult with time. It's a consequence of the technology-intensive world we live in. The only way to cope with the resulting complexity and volume of electronic communications - to connect all the dots, as it were - is to use powerful new analytic techniques that can help attorneys to focus on the most crucial and salient aspects of the matter."

Advanced analytics software makes it possible to answer important questions that were previously unanswerable, she continued. For example, analysis of patterns of communication and behavior can reveal deviations from standard business procedures that could be indicative of a significant flaw in an attorney's argument. Communication patterns may reveal people whose importance was previously not obvious and whose data should be examined, or may indicate that some people's data is irrelevant to the matter at hand and should be excluded. Analytics software can detect suspicions patterns of data deletion or can show that not all of the required evidence has been made available. In short, use of a sufficiently sophisticated solution can open the door to a wealth of information that could not previously be seen, no matter how closely one looked at the data. Changing patterns of behavior are often not noted by people, as they become taken for granted as normal. So they may not be obtainable from witness interviews, for example, and in many instances can be detected only by automated analysis of the electronic data.

"It's a classic example of missing the forest for the trees," Charnock said. "Even expanded investigative or case teams are challenged to organize, explore, and interpret such bodies of data as thoroughly as they would wish - especially when working against tight deadlines set by judges who tend not to look kindly on a party's apparent inability to efficiently produce the necessary documents." The situation is likely to be thrown into even sharper relief with the adoption on December 1st of new Federal Rules of Civil Procedure that require parties to explicitly address issues of electronic discovery early in the process.

"Sophisticated computer-aided methods are fast becoming the only option that is rapid and powerful enough for a wide array of legal matters," Charnock continued. "The faster a corporation can marshal internal evidence to understand its position in a lawsuit, for example, the sooner its attorneys can determine whether to seek dismissal or a settlement, with the potential of significant cost savings."

It's not at all uncommon, Charnock noted, to see large, complex cases that involve many millions of electronic items. But to identify among these many items the crucial information that will guide the strategy of a case - and which may determine its outcome - calls for a level of understanding of the situation that cannot realistically be achieved by trying to plough through all of the data piecemeal. Rather, such understanding can be reached only with the help of the most sophisticated computer analysis.

Fortunately, software is now available that can rapidly analyze the fragmented, complex and voluminous evidence that is typical of today's larger legal matters and determine the sequences and chronologies of past events that may have involved scores of people, all communicating - explicitly and implicitly - their thoughts, feelings, intentions, and reactions. The difficulty of analyzing the content of such evidence only multiplies when, as is often the case, many of these persons turn out to have used more than one electronic identity - different email addresses for office and home, for instance.

Often, too, it is not simply who said exactly what and to whom that matters as much as the emotions and tone of language they used in their writing. Indications of anger, surprise, misgivings, or outright dismissal, for instance, may be tell-tale signs that some event or email exchange warrants closer inspection. Identification of significant emotional content of messages, Charnock noted, needs to be undertaken against a baseline of what is normal for the individuals or topic involved - some people are just naturally more pessimistic, or angry, than others, while some topics typically evoke stronger emotions than do others.

Charnock's company, Cataphora, is the leading provider of evidence analytics software and services, which use statistical, mathematical and linguistic techniques to detect patterns, changes and anomalies in people's behavior as recorded by the computer and other communications systems that they use. She explains: "It's often the anomalies in a sequence of personal communications - the unexpected changes in tone or message patterns - that are most interesting and revealing of intentions and misbehavior." For example, the breakdown in an established workflow process, or a collective shift in attitude on a particular topic, may be an indicator of something that merits closer inspection.

"Even a 'dream team' of the sharpest legal minds backed by dozens of associates would be hard pressed to determine the typical patterns, much less identify any seeming anomalies, by means of manually reading and sorting a million electronic documents," Charnock elaborated. Indeed, the problem of identifying these crucial patterns and exceptions is such a computationally intensive one that even rooms full of high-speed computers working 24 hours a day can require several days to fully analyze a typical archive of corporate documents and email. "My advice," said Charnock: "Don't try this at home; get help from people who do this kind of analysis day in and day out, and who have years of experience of doing so."

About Cataphora

Cataphora Inc. is the creator of C-Evidence, the solution of choice for investigative analytics and electronic evidence review. C-Evidence Investigative Analytics provide attorneys and investigators with unprecedented insight into electronic data, revealing fact and behavior patterns and providing answers to critical questions that were previously unanswerable. C-Evidence Electronic Evidence Review presents clients with the most important evidentiary data early in the review cycle and more effectively filters out junk and the other non-responsive data. By contrast with software that merely groups documents based on similarity of their contents, C-Evidence automatically finds the relationships among all the documents and all the people who created, received, or interacted with them, using these to present data for review in the most efficient review platform available.

Cataphora's C-Evidence Platform is being widely used by corporate legal departments, private law firms, and investigators with document-intensive matters in such areas as white-collar crime, securities, antitrust and intellectual property.

Cataphora is headquartered in Redwood City, California with an East Coast office in Washington, DC. For more information, please visit www.cataphora.com or email [e-mail].

Editors, note: All trademarks and registered trademarks are those of their respective companies.

Additional background information is available at www.roeder-johnson.com.