Litigation Journal

Litigation and Trial Practice in the Era of Big Data

David J. Walton

About a year ago, I settled a case just before the start of a scheduled eight-week trial. With this big, unexpected hole in my schedule, I decided to study up on the phenomenon known as big data. Mostly, I wanted to know whether and how it might affect the work of litigators and trial lawyers.

I started by picking up Rick Smolan’s and Jennifer Erwitt’s book, The Human Face of Big Data (2012). In an interview, Smolan had quoted Yahoo Chief Executive Officer Marissa Mayer: “She said big data was ‘like watching the planet develop a nervous system. . . . She talked about things like using satellites to look for mosquito infestations. Paul Sloan, Big Data Gets Its Own Book, "The Human Face of Big Data, CNET (Nov. 8, 2012) available at By the end of the book, I was convinced Mayer is right. Big data will change the way we do and view just about everything, including the way we practice law.

Many people think "big data" just means a lot of data. That's only partially true. Big data is really data analytics. A staggering volume of information is generated each day, and computer scientists are developing more and more powerful ways to analyze it. Researchers are now able to apply sophisticated algorithms to incomprehensibly large volumes of data to find patterns humans could never intuit or identify.

Many factors are fueling big data's emergence: an information explosion, the growth of social media, the improvement of computer processing speeds and Internet bandwidth, and the availability of faster and cheaper computer memory. All this helps make big data, well, big.

Just a few facts underscore the point:

  • From the beginning of the world through 2003, humankind created five exabytes of data. By 2010, we were creating five exabytes of data every two days.
  • For $60, you can now buy enough memory to store all the music ever created in the world.
  • It is estimated that by 2016, the gigabyte equivalent of all movies ever made will cross global IP networks every three minutes.
  • The average smart phone now has more computing power than all of NASA in 1969, the year Neil Armstrong landed on the moon.

So we are living in a world with an enormous amount of data. And for the first time, we have the technological ability to store and process it economically. Armed with these tools, researchers have successfully applied principles of quantum analytics—very powerful mathematics—to look at large pools of data to find patterns with powerful predictive capabilities.

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