Inside eDiscovery

eDiscovery Standards of Practice: Responsibility v. Opportunity - Part 1

Legal precedence is designed to keep practice within parameters, to create predictability and to develop standardized treatment of factual circumstances and subject matter. The practice of eDiscovery has developed differently because it is both created and affected by technology, and its growth has been dizzying. Inevitably, rapid technological evolution finds itself at odds with the conscious conservatism and methodology of law and that has produced “progress” at inconsistent and varying rates.

Responsibility

Because the landscape is ever-shifting, it has been difficult for professionals to gauge the responsibilities of practice. eDiscovery practice occurs in an environment where there is a huge divide between the opportunity that technology provides versus what our profession requires of us. In fact, you may be overwhelmed by a constant barrage of possibilities from the technology industry and from colleagues that routinely seem to raise the bar and question;

• Are you outsourcing?
• Are you fully exploiting analytics?
• Are you a forensics expert?
• Is your data dark?
• Are you optimizing the cloud?
• Is your data at risk of a cyber-security breach?
• Are you integrating big data and information governance principles?

The answers to these questions are relevant and powerful depending on the context, your client and your organizational structure. Despite the frenzy of the marketplace, we are fundamentally held to a standard of reasonableness, competence, fairness, and proportionality. As we wait for the courts to create definition around these vague standards, there is considerable flexibility in the practice of eDiscovery and to better understand how to navigate your way through the eDiscovery landscape, Part 2 will outline the relevant resources for practitioners. From caselaw to treatises, blogs and more, we will outline the nuance of practice intended to incorporate efficiency, superior technology, collaboration and defensibility.

Reality Check

As jurisprudence develops, the profession is largely motivated by comfort level, cost, client input and dipping our collective toes into emerging technology. The organic eDiscovery standards of practice, free-formed and tailored to specific need and context (the business of law), create a confusing array of priorities and an increase in ebb and flow as professionals are influenced by a market that emphasizes predictive coding, information governance, data mining, cyber-security, etc. It also encourages a tech-centric, competitive, one-dimensional world where an irrational fear of being perceived as outdated (though compliant) may be contrary to successful business models. Within the tension between practice and marketplace lies the line between real responsibility and competitive opportunity.

So, in a young and ever-evolving industry, we face a practice environment where jurisprudence is scant and we hang on every decision or rule change but, where technology constantly improves and provides the possibility of so much more. However, this framework provides considerable flexibility on individual matters. It is in the large spaces that exist between rulemaking where eDiscovery practitioners look to policy think tanks (Sedona, EDRM, etc.), conferences, colleagues, wonks and legal services vendors for support and guidance. It is in that space that standards of practice are created client by client, firm by firm and day by day and for the savvy practitioner, there is considerable strategic opportunity.

Inside eDiscovery Digest - Weekly Top 3

Must see articles for the week of March 9;

HBR Consulting 2015 Law Department Survey: eDiscovery Flash Survey Results: HBR compiled its 2015 information characterizing in-house eDiscovery from a series of roundtable discussions held nationally and reflecting varied geographic markets. I think that this is a fascinating validation of what we may be seeing from other perspectives in the legal technology industry; an increase in in-house eDiscovery employment opportunities, an increase in law firm eDiscovery outsourcing via corporate relationships and due to corporate pressure to economize, a growing acknowledgement and understanding of IG, etc.

Are China's new Data and Cyber-security Regulations a Wolf in Sheep's Clothing? by Rachel Teisch: eDiscovery in Asia has always been a challenge (particularly in China) because of “privacy” issues and government interference and this article by Rachel Teisch at Xerox recalls an in-country collection that I was involved with in 2010 where private security was required to secure our associates and the data despite all efforts of the GC. New personal privacy regulation may further hinder eDiscovery in China along with potential new cyber-security rules that would dramatically impact anyone doing business in the country just as Chinese companies expand their global presence.

Judge Peck's Latest: TAR now "Black Letter Law;" CAL Reduces Significance of Seed Set by Bob Ambrogi: In Judge Andrew Peck’s recent opinion in Rio Tinto PLC v. Vale SA, Case 1:14-cv-03042-RMB-AJP (S.D. N.Y. March 3, 2015) he references back to his groundbreaking Da Silva Moore decision and elaborates on the use of TAR technology in a case where the parties’ TAR protocol was at issue. Of particular interest, Judge Peck discusses the transparency of seed sets or training sets and he suggests that Continuous Active Learning (CAL) may alleviates some concerns where parties do not otherwise stipulate to openness and he warns that holding a TAR process to a higher standard (versus keyword search or manual review) is not appropriate.

A Practical Evolution: Continuous Active Learning (CAL) and Technology Assisted Review (TAR)

In his recent post, A TAR is Born: Continuous Active Learning Brings Increased Savings While Solving Real-World Review Problems, Catalyst founder John Tredennick describes Continuous Active Learning (CAL) as a proposed advanced protocol for Technology Assisted Review (TAR). Developed by Maura Grossman and Gordon Cormack, CAL integrates training and review in a process where the platform’s understanding of the subject matter continuously evolves as documents are reviewed and as new documents are ingested. Tredennick compares CAL to Simple Passive Learning and Simple Active Learning protocols and outlines how CAL evolves TAR with further cost and time savings, improved results and elimination on the reliance on SME’s.

It is possible to see the CAL method as a common-sense progression and evolution of TAR. CAL more closely resembles the holistic, iterative process of an efficient, traditional document review where case development and understanding gathers steam as the review “machine” learns as it reviews. Furthermore, CAL, as a hybrid approach, may alleviate some of the remaining resistance to TAR because it achieves the efficiency and reliability of advanced analytics without the constraints of what Tredennick calls, "TAR 1.0.”

Inside eDiscovery Digest: Weekly Top 3

Must see eDiscovery articles for the week of October 27;

Using Analytics to Clean Out the ESI Garage by Robert D. Brownstone and Gabriela P. Baron. This is an incredibly helpful, high-level article that serves to gently nurture us toward information governance (IG). We have heard a great deal about “dark data” this year and how paralyzing and costly it can be for organizations. Brownstone and Baron guide us through the basics of an IG business rationale, identifying analytical tools and developing institutional policies for data management.

Myth-Busting Predictive Coding: Are Key Words Really Dead?  by Sean Doherty. Perennially, the legal industry questions, “why is predictive coding under-utilized?” In interview style, Doherty examines the growing disconnect between the possibility and practice of technology with two leading eDiscovery practitioners. As most eDiscovery professionals know, technology hype paints a different picture from reality and here we discuss the continuing use of keywords, how professionals bring technology to life and the pace of analytics acceptance.

eDiscovery in Asia: Legal. Technical and Cultural Issues by FTI. Asian Legal Business Magazine and FTI conducted a wide-ranging study broadly looking at eDiscovery trends in Asia. The resulting white paper explores the big issues facing professionals working in Asia including data privacy and confidentiality, eDiscovery costs, the impact of new regulation in the region (China) and how these challenges impact an expanding Asian legal market. PDF version: Download EDiscovery in Asia - Legal, Technical and Cultural Issues

Inside eDiscovery Digest - Weekly Top 3

Must see articles for the week of September 8;

2014 Shaping up to be "Year of Technology" in eDiscovery by Exterro. Gibson Dunn recently released its 2014 Mid-Year Electronic Discovery Update and in this post, Exterro provides a link to the full report, summarizes its most salient points and speaks with two GDC partner contributors. The content focuses on predictive coding and the use of cloud-based solutions.

A Rose by any Name by Simon Michael. The possibilities of legal technology have exploded in the past five years (or so) and it has expanded the scope of practice to include enterprise strategies including IG, big data, etc. Michael focuses his comments on recent analysis that explores why legal technology has been so slow to fully integrate into review practice and he waxes poetic on the impact of a name on adoption…predictive coding, TAR, CAR, machine learning. I think that this discussion is meaningful because it helps eDiscovery professionals assess their own best practices, it draws attention to how the “market” affects (positively or negatively) client expectations and it highlights the power of perception on the legal services industry.

Nine Tips Controlling Discovery Expenses and Risks by Dante A. Stella. Stella provides a very helpful checklist of strategies to create efficiencies during the discovery process. Though intended for inside counsel, the content is a great resource for anyone tackling an eDiscovery project with topics including information governance, legal holds, IT, collection, preservation, etc. It is always productive to use thoughtful tips such as these to reaffirm your existing best practices.

Inside eDiscovery Digest - Weekly Top 3

Must see eDiscovery articles for the week of August 25;

Center Stage: Judge Andrew Peck by Mark Gerlach. An excerpt from a session with Judge Peck at ILTA’s 2014 conference in Nashville, these comments from an eDiscovery pied piper focus on three of the most salient issues in practice today; predictive coding, FRE 502 and amendments to FRCP 26(1).

PC-TAR, Oversold and Under Adopted? by Greg Buckles. Buckles reveals the results of surveys and interviews designed to better gauge the real impact of analytic technology products on the legal profession. Despite pervasive marketing and widespread recognition, Buckles’ data highlights the difference between acceptance and adoption. In particular, there seems to be a significant difference between the use of analytics as part of an ECA process and the use of analytics for automated review.

The Exciting Changes in eDiscovery - A Conversation with an Expert. I always find information about eDiscovery practices in other countries to be fascinating and I have posted on EU and Asian perspectives here in the past. This article about the nature of eDiscovery in New Zealand reflects a global marketplace and shows that law firms in NZ are faced with the same challenges and decisions confronting legal professionals in the States.

Inside eDiscovery Digest – Weekly Top 3

Must see articles for the week of April 7.

Here Come the Robot Lawyers - By James O’Toole. It’s not often that eDiscovery is highlighted in mainstream media. CNN Money published this article referencing Winston & Strawn eDiscovery evangelist John Rosenthal and harkening the widespread adoption of predictive coding and its effect on the ranks of law school grads.

Machine Learning and Law - By Harry Surden. Technology is affecting the practice of law and its processes and this recent Washington Law Review article does a “deep dive” into the technology and its uses.

Using TAR in International Litigation: Does Predictive Coding Work for Non-English Languages? - By John Tredennick. Meant to partner with my recent post regarding foreign language review available here, John’s article does a great job of walking the reader through the process and benefits of TAR along with exploring its use with foreign languages.

Is Big Data Law’s Big Bang or a Black Hole?

Cosmology (study of the cosmos) is in vogue. The television series Cosmos has returned to critical acclaim and researchers on the BICEP2 experiment at the South Pole have revealed that new measurements of gravitational waves bolster “big bang” theories that the “universe got very big very fast, transforming itself in a fraction of an instant from something almost infinitesimally small to something imponderably vast, a cosmos so huge that no one will ever be able to see it all.” In many ways, this strikes me as an apt description of the impact of technology and data on the practice of law as is evidenced by an outdated graphic to the right.

Data; the written word, communication, documents, agreements, etc. is the cornerstone of our profession. In 2014, data is constantly created by us and is available to us via myriad devices at all hours and, according to the “Internet of Things,” will be emanating from our waffle irons in due course. The power of human intercourse/relationships and the legal structure that binds it will continue to be controlled by how attorneys weave facts into jurisprudence. In less poetic terms, lawyers will need to embrace modern data and how it is managed to succeed in telling their stories and billing their hours. How practitioners acknowledge and exploit the data explosion and integrate emerging technology into their discovery strategies (fighting fire with fire) will determine “big bang” or “black hole.”

The “latest” addition to the legal technology universe is predictive coding (along with broader related disciplines like data mining and information governance).  In the five-year lifespan of predictive coding we have asked a full cycle of questions. What is it? How does it work? What’s an algorithm? Is it defensible? What are best practices? Is it over? The profession continues to see a proliferation of chatter about why legal practice is so slow to fully adopt predictive coding and its efficiencies. Even in a profession conservatively guided by precedence, many of us understand how critical it is for lawyers to keep pace with market changes and opportunities and I worry what the implications will be if legal practice continues to evolve at a rate slower than the world around it.

TAR: Table for One? - Subject Matter Experts (SME's) and Technology-Assisted Review (TAR)

John Tredennick posted an interesting article on SME's last week for Catalysts' "E-Discovery Search Blog" (http://www.catalystsecure.com/blog). The post link is below.

In the world of document review, training the reviewer (attorney team or algorithm) is critical to success. Working with 100's of case teams, I have learned that there is NEVER one SME. At any given point in the life-cycle of a document review, the attorney who is most expert with respect to the substance of a matter may change.

Immediately after collection, the expert may be the fourth year who "managed" the collection. There may be experts who are assigned to individual issues.  As a matter progresses, it is more likely that expertise may be found with a senior associate who is charged with managing the production relationship with opposing counsel, organizing depositions or preparing motions as the case develops.

In addition to it being unlikely that you will find one oracle at Delphi for your matter, I worry that the use of one SME encourages a very singular perspective regarding the crux of a case. Even well into a review, I have seen attorneys practically come to blows about review analysis/interpretation. In the realm of TAR, I think that it is most instructive to have 2-3 experts so that debate and consensus is encouraged.

For more detail, please enjoy, Subject Matter Experts: What Role Should They Play in TAR 2.0 Training?;

http://www.catalystsecure.com/blog/2013/11/subject-matter-experts-what-role-should-they-play-in-tar-2-0-training/