Technology, business and the law
The big data dump
Aug 28th 2008 | SAN FRANCISCO
From The Economist print edition
A deluge of electronic information may overwhelm American civil justice
DAWN BEYE’S teenage daughter suffers from anorexia nervosa and had to be treated in hospital at a cost of about $1,000 a day. Horizon Blue Cross Blue Shield of New Jersey, the Beyes’ insurance company, covered one month of the bills but then balked, demanding evidence that the affliction was “biologically based” rather than psychological. So Ms Beye got together with parents of other anorexic and bulimic teenagers and sued. Horizon immediately asked to see practically everything the teenagers had said on their Facebook and MySpace profiles, in instant-messaging threads, text messages, e-mails, blog posts and whatever else the girls might have done online.
DAWN BEYE未成年的小女儿患有神经性厌食症，在医院接受治疗时每天的开销接近1000美元。位于新泽西的Horizon Blue Cross Blue Shield是Beye的保险公司，在给付了一个月的医疗费用后突然中止了保险责任，并且要求Beye举证说明病痛具有”生物学基础”而不是心理学问题。于是Beye女士联合了其他厌食症和食欲过剩症患儿的家长进行起诉。保险公司则要求审阅这些女孩全部的在线叙述记录，包括在Facebook和 MySpace上的简介，即时信息记录，收集短信，电子邮件以及博克。
The Beyes’ lawyer, David Mazie at Mazie, Slater, Katz & Freeman, objected on the grounds that Horizon’s demands violated the girls’ privacy. He lost. So hard disks and web pages are being scoured in order for the case to proceed. Gathering and then sifting through all the electronic information that a few teenage girls have generated is excessive and daunting, says Mr Mazie.
And yet almost all information today is electronic, and there is ever more of it. “Things that we would never have put in writing are now in electronic form,” says Rebecca Love Kourlis, formerly a justice on Colorado’s Supreme Court and now the director of an institute at the University of Denver dedicated to rescuing America’s civil-justice system.
目前几乎所有的信息都已经电子化，而且还有日益增多的趋势。科罗拉多最高法院前法官Rebecca Love Kourlis表示”那些我们从来没有想过写下来的东西现在都有了电子版”，她现在是丹佛大学某学院院长，致力于拯救美国民事司法体系的工作。
This system, she says, was already a “sick patient”-with crowded dockets and understaffed courts-but electronic discovery now threatens a lethal “spike in fever”. She has seen ordinary landlord-tenant disputes take three years, and divorce cases that might have been merely bitter, but are now digital wars of attrition. She sees cases that are settled only because one party cannot afford the costs of e-discovery: whereas in the past 5% of cases went to trial, now only 2% do. She knows plaintiffs who cannot afford to sue at all, for fear of the e-discovery costs.
For large companies, these costs now run into many millions. Patrick Oot, a lawyer for Verizon, an American telecoms giant that gets sued a lot, says that at the beginning of this decade e-discovery presented “a one-big-case, once-a-year problem”. In most cases information was still on paper, and its volume thus limited. In the rare event that electronic evidence was requested, 100 gigabytes (GB) was considered a large amount. Today, says Mr Oot, almost every case involves e-discovery and spits out “terabytes” of information-the equivalent of millions of pages. In an ordinary case, 200 lawyers can easily review electronic documents for four months, at a cost of millions of dollars, he says.
This has led to a new boom industry of specialised e-discovery service providers which merrily charge $125-600 an hour. George Socha, a consultant, estimates that their annual revenues have grown from $40m in 1999 to about $2 billion in 2006 and may hit $4 billion next year.
这引领了一个新兴繁荣产业的诞生–专业的电子搜索服务供应商，收费差不多是每小时125-600美元不等。George Socha 估计他们的咨询收入从1999年的4000万美元增加到2006的20亿美元，并且有望在明年达到40亿美元。
The process of e-discovery starts when the adversaries in a lawsuit demand to see all sorts of information in their search for relevant nuggets. Each side then has to identify all the laptops, smart-phones, memory sticks, network servers and back-up tapes that might store data created by the people in question. It probably also has to request logs from online-service providers, if those people used web-mail or similar services. The results then have to be indexed and reviewed by humans. This usually falls to the junior staff at law firms, some of whom are so fed up with the drudgery that they have quit the profession altogether.
For firms that find themselves in court a lot, it makes increasing sense to bring this entire process in-house, rather than farming it out. Verizon, for instance, has been using outside firms such as Kroll, but found them “really expensive”, says Mr Oot. So Verizon has established a dedicated internal e-discovery group which Mr Oot oversees and which will gradually take over all e-discovery using its own software and staff. Mr Oot reckons this will save Verizon $11m in costs over three years.
对于经常要上庭的公司来说，他们越来越觉得应该自己完成这项工作，而不是外包出去。Verizon 的 Oot 表示雇佣类似于Kroll这样的外部公司实在是太昂贵了；于是他建立了直接隶属于自己的内部电子搜索团队，它将使用自己的软件和员工最终接收所有的电子搜索同工作。Oot预测该举措在未来3年内将会为Verizon节省1100万美元。
But even as huge companies such as Verizon learn to cope, the civil-justice system as a whole threatens to get bogged down. Stephen Breyer, a justice on America’s Supreme Court, recently expressed concern that, with ordinary cases costing millions just in e-discovery work, “you’re going to drive out of the litigation system a lot of people who ought to be there” so that “justice is determined by wealth, not by the merits of the case.”
This is overwhelmingly an American problem. In countries such as France and Germany that have an inquisitorial legal tradition, e-discovery tends to be proportionate to the case, because judges largely determine what information is relevant. By contrast, in adversarial common-law systems, it is the opponents in a case that decide how much information to peruse before picking out the evidence. But most countries within this tradition, such as Britain, Canada and Australia, have recently moved towards inquisitorial systems to minimise the threat from e-discovery.
As a result, American civil law is now “way behind” the rest of the world, says Ms Love Kourlis. New federal rules that took effect in 2006 included guidelines for electronic data. But they have not changed a fundamental aspect of America’s brand of adversarial law, which places almost no limit on the information that the plaintiff and defendant may seek from each other.
So Ms Love Kourlis suggests some new rules. Judges in civil cases, she says, need more power to assess and define the appropriate amount of information that can be sought in each case. Civil cases ought to require both sides to disclose what information they have, as in criminal cases, thus ending the game of hide-and-seek that makes both parties ask for more, for fear of missing something. And shifting lawyers away from being paid by the hour (see article) would mean that they no longer had an incentive to add to the process.