Whilst this story has Nuix software as its inspiration, the point is a wider one – where do you start when you don’t know where to start on a large collection of data? A combination of software and shoe leather may be needed. And the software and skills may open doors to new practice areas.
I have been focusing on the impact of the Jackson reforms in England and Wales, but the big eDiscovery story of the month has involved a rather different application of a discovery tools and techniques. The focus on court rules and on technology and processes can easily blind us to the importance of data as evidence. Evidence matters (or should matter) as much to investigative journalists as it does to lawyers, and the same technology can be used by both.
The International Consortium of Investigative Journalists (ICIJ) was given anonymously a hard drive containing 260 GB of data including more than 2 million e-mails, as well as Word documents, databases and spreadsheets – as broad a mix of source types as one will find anywhere. Many eDiscovery exercises begin with the question “What have we got here?” – an important point, often overlooked by those who ask simplistically “Why are we don’t just use Google for eDiscovery search”. You need something rather different to investigate this kind of volume of mixed data when you have no idea what it is all about.
The ICIJ turned to Nuix, who provided software licences free of charge to enable investigation of the data. That turned out to include the biggest collection of leaked data in the history of journalism, all relating to financial arrangements of the kind which the rich and powerful use to keep their assets and transactions hidden from view. Government officials, wealthy corporations and individuals, banks and offshore tax advisers all featured, and much more prominently than they would hope.
You can read about it in an article by Nuix CEO Eddie Sheehy called Nuix the Obvious Choice for ICIJ “Global Offshore Money Maze” Investigation which includes a graphical display of the complex webs of interaction which the Nuix software flushed out. You might also be interested in an article called Aussie Software Ferrets Out Hidden Money. The ICIJ’s own telling of the story is called Secret Files Expose Offshore’s Global Impact.
Once you have read these, let’s just hammer that point about the relevance of this to an eDiscovery or investigations exercise. You are not, perhaps, looking for data relating to known custodians and pre-defined issues, and you do not necessarily have a nice tidy set of keywords to start with. You have just a tip-off or a suspicion, perhaps about criminal activity, insider trading, bribery or non-competitive conduct. It is nice to know that you could handle 260 GB comfortably, but that volume of data is not a prerequisite for using tools like Nuix.
What you want to pick out are themes and connections – names, bank account details or telephone numbers, IP addresses, or anything else which helps identify recurring or related information. That takes a great deal of processing power, quite apart from the search and analytical tools in the software. You need the ability to follow trails and to group material by reference to elements whose identity you could not guess at when you began.
Then think how useful that would be in a conventional eDiscovery exercise when the priority is to get lawyer eyes on the things which potentially matter. The elements of international mystery and high finance make this an intriguing story; its significance, however, lies in its application to our everyday problems.
Two points appears from these articles which are worth attention. One is the reference to “shoe leather” in the ICIJ article. The use of software of this kind, whether it comes from Nuix or anyone else, is a starting-point, a powerful short-cut to human investigations. The article touches on motive and opportunity, both of which require human analysis. Tools like this are empowering agents, not substitutes, for lawyers and journalists alike. The processing and analytics which gave the journalists a jump-start have the same value in the hands of a regulator, and of the legal team which wants to get to the evidence before the regulator does.
The other point, again going well beyond any particular application, is that software of this kind doesn’t run itself – however clever they may be, and however friendly their tools and interfaces, they need guidance from someone who knows how to use them and to evaluate the results. Those skills can help define new career paths, for lawyers who want to expand their practices and for science-trained people who want a practical application for their abilities. I have been writing recently (see The Ghost of Legal Services Yet to Come – a Futurist tells of things that may be) about how law firms can seek out new areas in which they can use their skills – the “white spaces where others are not looking”. An investment in software of this kind, and in acquiring the skills to use it, can open doors well beyond compliance with the civil procedure rules of your home jurisdiction.