Selecting TAR Solutions is No Easy Task, But It All Comes Down to a Few Simple Questions
In the wake of Legal Tech 2013, many of us were left digesting a host of new service providers and old service providers claiming to offer everything under the sun. Now, is a good time to reflect on how we manage eDiscovery needs, what solutions work, and how your company or firm embraces technology assisted review (TAR) solutions. In a world of ever-expanding volumes of data and an increasing frequency of matters that involve eDiscovery, it is rare that you find cases without some form of electronically stored information (ESI).
Given the consolidation and churn in the eDiscovery market, how do you pick the best solution for your eDiscovery matter? It comes down to a few simple questions.
What type of matter do you have?
The type of matter and government or legal entity that will ultimately receive your production should be a paramount concern in deciding on the appropriate tool for a matter. The SEC, FTC, DOJ and even certain districts have preferred tools and formats for production. Producing in the preferred format and suite of solutions eliminates potential conflicts and smooths the overall process of specific government investigations or litigation. The SEC & FIRNA for example have Recommind as in-house tools, while the DOJ is a Kroll Ontrack shop just to name a few examples. Having an optimized tool in your arsenal for specific agencies strengthens your platform and ultimately your case.
What is your time frame?
Time is a major factor when vetting TAR tools and workflows. If you are in the rocket docket, or working within the 45 day HSR window, traditional eyes on every document approach may be time and cost prohibitive. Leveraging a tool that prioritizes review, takes advantage of predictive coding decisions or automated review may serve as an ideal, time saving solution. However, a complex review with highly technical documents, high level of images or complex spreadsheets may lend itself less readily to the TAR tools on the market. The shorter the time frame and the larger the volume of data, the more attractive non-linear solutions become.
How big is your budget?
Traditional eyes on every document can be done in any case, but the greater the volume of data, the more you will have to spend. Analytics allow practitioners to leverage technology to create efficiency in the review process and reduce the number of documents that need to by evaluated by a human while still remaining a defensible solution.
In the past, practitioners came up against the “pick two” scenarios, where they could have a fast, accurate or inexpensive review, but not all three. Prudent application of analytics (for culling, batching, prioritization, advanced searching, clustering, suggestive coding or automated analysis) bridges the gap and allows for a practitioner to get all three options via technology in conjunction with human analysis. Now the scenario is pick 3 out of 4: fast, accurate, inexpensive and familiar (safe).
Do you plan to use advanced analytics?
Which TAR tool you select is contingent on how much, if at all, you plan to leverage analytics. Consider the following car analogy. If you want to drive fast and maneuver stealthily through traffic, and get noticed, then a sports car is right for you. However, if you are looking to stay under speed limit and drive in a less than sporty manner, many of the benefits of a sport scar go to waste. This is my impression of many of the bleeding edge technology solutions. Are they sexy, fast and high risk/reward propositions? Absolutely! Can they function like other linear solutions? Yep! But if that is how you plan to run a review then you are not best optimizing the tool and could get the job done with a more mainstream solution.
This is why no one tool fits every situation. Sometimes you need a workhorse, a safe and reliable tool to get a job done and sometimes you need something more nuanced with technology that can be leveraged to achieve greater accuracy, speed and cost savings. Neither solution is the right answer every time. As a practitioner in the eDiscovery space it is incumbent upon you and your team and your advisers to know the options along the TAR spectrum and when to leverage which tool from your toolbox.
What is the right tool for this matter?
Every company under the sun claims their solution is the best; the metaphorical easy button for every situation. Anyone who has been working in eDiscovery for more than a moment knows this simply is not the case. What works for the rapid turnaround time and road culling requirements of an HSR matter is not necessarily going to be the same solution that works for an ERISA matter looking for the proverbial needle (email) in the haystack. If resources and time are limited, leveraging advanced technology is a great option. If reviewing the opposing side’s production eyes on every document may not make fiscal sense. However, in a highly contentious case without tight deadlines and where your client is risk adverse, a big familiar name may make much more sense. The more you know about what you are looking to get out of your review resources, the easier it is to find the appropriate tool along the spectrum of technology assisted solutions.
Looking Beyond the Technology
Looking past the review platform in selecting the managed review partner that best suits your case, be sure that they can support your needs across the TAR and Linear solutions. Make sure your partner can provide you with expert management in Relativity, TAR or other Household names like Kroll. This flexibility is key; otherwise you may end up stuck with a Managed review provider trying to tout their one trick pony as the best solution in every case.
Hudson realized early that our clients needs vary… matter-by-matter, case-by-case. And that is why we chose to take a diversified portfolio approach to our partnerships. We embraced TAR without forsaking traditional eDiscovery staffing and management because the legal practice needs a variety of solutions. If you are interested in learning more about our solution suite see the following press releases.
Recommind eDiscovery Counsel, Drew Lewis, points out that that the EORBH, Inc. v. HOA Holdings case is taking place in arguably the most important business court in the country.
Below is an excerpt of his blog post.
“Tucked away on page 66 of a 68-page transcript from a hearing on a motion for summary judgment in arguably the most important business court in the country, the message was clear: predictive coding is going mainstream. EORHB, Inc. v. HOA Holdings, or “The Hooters Case” as it will be more easily recognized, provided an unlikely vehicle for a case to rock the eDiscovery world. After pages of discussion surrounding indemnity clauses, releases, and how different subsections of the underlying contract operate, Vice Chancellor J. Travis Laster jumped into the deep waters of predictive coding. In a bold bit of jurisprudence, Judge Laster advised the parties.
Why don’t you all talk about a scheduling order for the litigation on the counterclaims. This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding. I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go.”
Visit Recommind’s The Core Perspective blog to read the entire post.
Read more about Hudson Legal’s partnership with Recommind.
So, predictive coding is here to stay, how do we get an expert?
Since the spectrum of solutions and the ambiguity in the advanced analytics space requires dedicated and concerted study, it can seem like a daunting and uninviting space to enter. But, like it or not, it is increasingly relevant in an array of practices. You might be reading this and shaking your head, thinking “really, you think a corner office partner will sit through webinars and read about analytics and algorithms. Most people go into the practice of law to avoid math!” While it would be great to have rainmakers and general counsel fully educated on all the changing case law and technology in this space, it isn’t practical. So, how do you bridge the intellectual gap? One solution is to build a world-class team of discovery savvy lower to mid level assets at your firm or company.
WHO ARE THE ESI MAVENS
As I have previously discussed in “The ESI Maven: A New Breed of ESI Practitioner” and “Emergence of the eDiscovery Knowledge Worker,” there is an entire swath of professionals who have grown up in the post eDiscovery legal space. The key in a large firm or corporation, is to build an internal coalition of employee resources who understand the alternative workflows, technical nuances and implications of technology-assisted review, or a team of vendor companies. Perhaps, instead of a team, you have a key person who is dedicated to eDiscovery and solutions with a greater reliance on the expertise and support of a more hands-on external vendor.
This group of people, or single person, may not currently exist within your firm, or the people with those titles may not be up to the task. However, there is the option to train and retain or invest in replacing unqualified personnel. A case is only as strong as the facts that support it. Without leveraging technological advancements, it is like showing up to a modern day battlefield on a horse with a bayonet. The playing field is only as level as your technology makes it today.
TRAIN AND RETAIN
Firms with employees who are not fully versed in technology-leveraged solutions should have them meet with the various vendors to request demonstrations. But, firm leadership must take the training past the pretty user interface and educate personnel to be well-versed on the case law supporting the applications discussed as well as the technology. Vendors want to work with you, so make them work to help develop you team’s knowledge. Direct your team to take advantage of lunch & learns, webinars, white papers, blogs and vendor written articles. Support attendance to relevant classes or conferences and encourage involvement in technology-focused groups (like Women in eDiscovery).
If a concern is loss of billable time due to this effort, then select a single member of your team to go out into the vanguard, gather this information and knowledge, and task that person with educating the team. Any time and money spent on truly educating your teams on the correct use of these tools, the case law and technology that each tool relies on will be recouped in spades; allowing your organization to take advantage of the benefits of technology assisted review.
INVEST AUGMENT AND REPLACE
A number of firms and in-house law departments have not yet made a transition to a dedicated eDiscovery process and group of resources to support eDiscovery. Some folks even cling to the ever fading hope that eDiscovery is a passing fad. Obviously, not only is eDiscovery here to stay, it requires a specific knowledge base and skill set to support the effective application of the tools necessary to execute in matters related to ESI. Depending on how underdeveloped the eDiscovery team is in your organization, there will have to be an investment to add the talent necessary to create a functional eDiscovery team or at minimum bring in a person versed in the nuances of eDiscovery.
While not currently having the dedicated resources necessary to support the increasing volume of eDiscovery matters is generally a disadvantage, having a clear slate offers a unique advantage to bring in experts who have spent their entire legal career in the eDiscovery space. It may be a mid-level associate or sophisticated technology expert with an understanding of the importance of statistics in the changing face of eDiscovery. Whatever route taken, pay for the best talent your firm can afford.
The last piece of the puzzle is integration. Your internal team and external vendor resources need not operate in a vacuum. The team needs a clear process for engaging these experts early and often. When possible, try to engage personnel beyond the core eDiscovery team to learn more about eDiscovery and work to organically grow eDiscovery fluent members at all levels. The greater the overall familiarity with and acceptance of advanced technology the more likely it will be effectively leverage.
The integration needs to extend to the IT department, since they understand the network and data architecture. Along with IT, stakeholders in the overall legal department and the litigation support teams need to have an open stream of communication. It is essential to understand the network architecture and litigation support is key in evaluating the tools to access the data and manipulate it and the legal stakeholder ultimately needs to inform the whole group of the overriding goal for the pending review. Having some level of common understanding of the language of eDiscovery makes this collaboration much smoother.
In closing, it is clear, from the recent judicial activism, predictive coding is not only fair game, it may be proscribed as well. Legal practitioners need to be prepare and educate themselves on the various types of technology assisted review tools on the market, know their risks and benefits and understand how they work. Beyond the legal practitioners, there needs to be an integrated team consisting of internal and external resources that collaborate using the common language of eDiscovery to determine the best course of action in ESI heavy matters.
We Have To Use Predictive Coding, Now What
In light of the recent proscriptive application of Technology Assisted review in EORHB, Inc., et al v. HOA Holdings, LLC, (Hooters Holding Co.) , choosing the right methodology and application of predictive coding is all the more important. However, with the flood of new entrants claiming to offer some variation of predictive coding and the confusion on what predictive coding actually means, it is all the more important for practitioners to be well-informed on the offerings of various tools. The spectrum of methods to apply the technology and the ways in which the intersection of man and machine impact the application to predictive coding.
PREDICTIVE CODING IS CLEAR AS MUD
Predictive coding is as ubiquitous as synergy, leverage or integration these days. Almost every provider, from the largest to the smallest can offer predictive coding, technology assisted review or non-linear review solutions according to their marketing material. How do you know which option is best for your client, whether the one recommended by a judge is right for your matter or if the tool suggested by opposing counsel is as great as they make it out to be. In short, how do you arm yourself with the knowledge to make an educated evaluation of all the varied solutions flooding the market?
The key to surviving in the technology leveraged, predictive coding space is a simple one: educate your self.
KNOW WHAT THE VENDOR MEANS BY PREDICTIVE CODING
In the past two weeks, multiple vendors have announced predictive coding service offerings; as a practitioner, you should look at what specifically the tools offer. Predictive analytics occupy a wide spectrum of offerings that vary from intensive human interaction to highly automated. You should know what your vendor is proposing when they mention predictive coding and whether or not their predictive coding solution works for you or your client.
As I discussed in “Predictive Analytics and Artificial Intelligence… Science Fiction or E-Discovery Truth?”, there are three primary flavors of technology assisted review that fall under the umbrella of predictive coding as it is used today. The spectrum of technology leveraged review solutions basically fall into the categories of supervised, semi-supervised or unsupervised machine learning.
Unsupervised Learning produces a data grouping prior to application based on statistical similarities or frequency of certain concepts or phrases (concept clustering, latent semantic indexing). This can be helpful in guiding the priority of a review, but it can also misdirect a user if an outlying word receives priority disproportionate to its relevance to the case. In terms of a workflow, it is most similar to the traditional liner approach, an accelerated linear review if you will.
Semi-Supervised Learning (SSL) Employs highly skilled attorneys on the front end to develop a seed set which is used to prioritize review and refine relevance and issues. When manual review of the algorithm’s inferences refine the model to maximal accuracy the remainder of the data is analyzed in an automated fashion with random sampling for accuracy. This is an eyes on most documents approach.
SSL can be either transductive or inductive, with the former prioritizing statistically similar documents and the latter inferring general rules to be applied to the corpus of test data in training the algorithm. The format being used by your provider makes a difference.
Supervised learning is at the other end of the spectrum, and is based on data decisions made by a human that are used to “train” the algorithm which then infers how data ought to be coded or classified. Iterative review of the algorithm’s inferences refines the model to Maximum accuracy.
Reinforcement Learning is similar to the traditional SSL model, but rather than data analysis followed by testing of the results, this model modifies the application of the algorithm to the entire body of data throughout the review. Absent prioritization this could prove risky if a key set of documents are towards the end of the body of documents.
KNOW THE DESIRED OUTCOME
The above styles of predictive coding all have different levels of potential risk and strategic benefits. If, you have a very tight timeline and limited budget, semi supervised machine learning, which uses a seed set, iterations and then automates the review after an agreed point, may make the most sense. If the time line is longer and the risk of inadvertent production is steep, a fully supervised model which uses a seed set and has eyes on every likely relevant document may make more sense. And finally if time and money are not an issue, but it is important to get to the key facts/issues of the case early using unsupervised learning in an accelerated liner review fashion may make the most sense.
The key is to understand what your vendor means by predictive coding, because what you assume they mean may not be what they are offering.
(Stay tuned for more in Part Three. Read Part One.)
EORHB v. HOA Ruling Sends Shockwaves Across eDiscovery World
Predictive Coding, Technology Assisted Review (TAR), Conceptual Search, whatever the current term of choice, technology leveraged document review is the hottest topic in the eDiscovery space today. Conferences, white papers and bloggers from around the world are buzzing about judicial activism and steps taken by the bench to encourage broader use of the advanced tools available to drastically reduce eDiscovery cost. But, if recent cases have opened the door to broad acceptance of predictive coding, EORHB, Inc., et al v. HOA Holdings, LLC has the potential to blow the door off its hinges.
U.S. District Court for the Southern District of New York in Da Silva Moore v. Publicis Groupe, and the Circuit Court for Loudon County, Va., in Global Aerospace v. Landow Aviation, have approved the use of predictive coding in appropriate cases.
Judge Peck’s order in Da Silva, a case in which both agreed to utilize Predictive coding, let the legal community at large know that “”predictive coding should be used in the appropriate case” and practitioners need no longer fear being a guinea pig. Global Aerospace went one step further, compelling opposing Counsel to accept a production derived from a predictive coding workflow. However, in one of the subsequent hearings in the Kleen Products, LLC, et. al. v. Packaging Corporation of America, et. al., Judge Nolan (another heavy weight in the evolving eDiscovery space) cautioned that:
“[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information,” and as such “the defendant under Sedona 6 has the right to pick the [eDiscovery] method.”
A GAME CHANGING DECISION
A Delaware judge,Vice Chancellor Laster, took matters into his own hands, when he proactively decided to require both parties to use predictive coding, or show cause as to why they should not use predictive coding technology, to manage electronic discovery. Judge Laster gave both parties two options; either they use the same vendor of their choosing, or he would “pick one for them”.
“This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding. I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go.
I would like you all to talk about a single discovery provider that could be used to warehouse both sides’ documents to be your single vendor. Pick one of these wonderful discovery super powers … If you cannot agree on a suitable discovery vendor, you can submit names to me and I will pick one for you.
… I would really encourage you all, instead of burning lots of hours with people reviewing, it seems to me this is the type of non-expedited case where we could all benefit from some new technology use.”
This stands stark contrast to Da Silva Moore, Global Aerospace & Kleen because the parties in EORHB, Inc., et al v. HOA Holdings, LLC, (Hooters Holding Co.) not only never agreed to use predictive coding technology, it appears that this was never discussed between the parties let alone with Judge Laster. In Fact, while reading the 68 page ruling, the concept of predictive Coding was not mentioned until after 66 pages of discussion on the meaning of footnotes, the meaning of “Provided further, however” and Romanettes (i, ii).
Beyond the content of the ruling, the Location & Judge involved are both of major note. Delaware has taken a proactive approach, adopting eDiscovery protocols earlier this year which the many companies headquartered in the small sate will have to abide by. And Judge Laster, in his 2 short years, has established him self as a strong and fair judicial activist and more than that an in the trenches judge looking for a way to manage the ever expanding data volumes hitting the parties in his courtroom.
This ruling represents the first prescriptive directive to use the spectrum of Technology Assisted Review processes that fall under the broad category of Predictive Coding. This represents a major step forward for proponents of technology Assisted review, and a cautionary tale to those not yet studying, evaluating and figuring out how to integrate new technology in their practice. Furthermore, if a as a practitioner you want to make an educated decision or advise a Judge as to why you have chosen a specific tool or process, you need to understand the vastly different tools on the market and myriad of ways which they can be applied to a document review.
In light of the recent prescriptive application of Technology Assisted review in EORHB, Inc., et al v. HOA Holdings, LLC, (Hooters Holding Co.), choosing the right methodology and application of Predictive coding is all the more important. However, with the flood of new entrants claiming to offer some variation of Predictive Coding & the confusion on what predictive coding actually means, it Is all the more important for practitioners to be well informed on the offerings of various tools, the spectrum of methods to apply the technology and the ways in which the intersection of man and machine impact application to Predictive coding.
(Stay tuned for more in Part Two)
Long before the ink was dry on the Da Silva, Kleen or EORHB cases, Hudson saw the shifting tide in the eDiscovery market and took decisive action. Rather than attempting to be the jack of all trades & master of none, or acquiring one of the lesser known tools and trying to cobble together a way to offer everything under the sun, we chose to partner with the best of breed in the eDiscovery space. Both companies are at the top of their respective fields and offer unparalleled service & solutions, but that is not what makes this strategic alliance different from any of the countless partnerships announced on a daily basis and the ones to come.
In coming together Hudson & Recommind wanted to create a synergy between the industry leading technology, project management and deep history of success with many of the largest matters to hit the eDiscovery space. In short, the goal was to make our joint venture greater than the sum of its parts. In dedicating time to train Hudsons international project management team to intimately understand the platform, its capabilities and strategic workflows over countless hours and integrating a seamless delivery strategy the two companies have developed an unparalleled solution that addresses the full spectrum of technology assisted solutions, managed the Recommind & PMP Certified project managers and eDiscovery experts with a deep understanding of the application and maximization of efficiency derived from using technology assisted review tools. In short, this combined effort offers seamless integration & flawless execution.
Disruptive Technologies and Precedent Setting Case Law Are Driving A Rapid Transformation within The E-Discovery Space
Article Excerpt from Legal Management Magazine, bp perspective: Insights from a Business Partner by Cat Casey, Hudson Legal
Big data and technology leveraged solutions, from early case assessment and advanced culling and categorizing tools to predictive coding and fully automated review, have shifted the industry to e-discovery 2.0. Law firm and in-house counsel alike need to understand the impact this transition has on their practices and the efficiencies and cost savings that they present.
BIG DATA AND E-DISCOVERY 2.0
Electronically Stored Information (ESI) has been doubling or tripling every 18-24 months with 85 percent of that data residing in business domains. Some studies forecast that 1.8 zettabytes (1.8 trillion gigabytes) will be created and replicated in 2011. They say that necessity breeds ingenuity, and this has certainly been the case with the e-discovery industry. As corporations contend with mountains of data and costs in e-discovery matters, they are taking greater ownership of handling ESI and welcoming the development of more efficient solutions. Large corporations are bringing technology and ediscovery specialists in-house and exerting increased pressure on outside counsel to contain cost in all aspects of the discovery process. Increasingly, corporations are also requesting alternative fee structures with outside counsel and service providers to reign in the cost of e-discovery, requesting flat fees per gigabyte, per document or for entire matters inclusive of billable hours according to Fulbright & Jaworski LLP’s Annual Litigation Trends Survey Findings.
In the world of e-discovery 2.0 the sheer volume of data continues to drive innovation and is evolving to a level that requires a greater level of expertise from the practitioners involved. The innovation and efficiencies that are being developed to deal with the scale of data will only be as effective as the practitioners that are implementing the workflows. Out of the morass of data technologies that facilitate early case assessment, advanced algorithms and machine assisted learning or front end semantic indexing have steadily cropped up as viable alternatives to traditional Boolean searching and brute force approaches to ediscovery.
Continue Reading… The days of banker boxes and manual bates stamping are long gone as are the days of traditional unaided linear review. Download Full Article >
Reprinted with permission from Legal Management magazine, Volume 31, Issue 6, published by the Association of Legal Administrators, www.alanet.org.
Fostering a Knowledge Worker Team
There is no denying that there have been rapid transitions in the eDiscovery space, and the discovery space over the last decade and increasingly so over the last 18 months. Along with these emerging processes, technologies and increasing volumes of data, a new breed of practitioners have emerged to effectively utilize the tools and technologies changing the eDiscovery space. From statistician and linguist, sophisticated project managers and consultants to savvy up-and-coming associates and litigation support professionals, the new knowledge workers occupy a wide swath of the legal community. The million-dollar question is, how does a firm or corporation attract, retain and most of all develop this talent internally at a speed that keeps pace with the rapidly evolving market?
What type of knowledge workers do you need?
The wide spectrum of talent in the eDiscovery community and legal space offers a dizzying array of potential knowledge workers for a legal team to choose from. So, how do you begin?
The first step in the process of creating a knowledge worker centric team is to know how your company or firm wants to approach e-discovery in general. Does your practice have the scale and volume of electronic discovery initiatives to support capital investment in hardware, software and internal personnel and infrastructure? If so, a fully in-sourced solution inclusive of statisticians, linguists, and the project management and attorneys is necessary to support document reviews.
If you have a smaller volume or less of a desire to have control of the eDiscovery process then a partially or fully outsourced solution makes the most sense. Firms that partially outsource or fully outsource eDiscovery are well served to recruit and develop practitioners with project management strength and to develop associates or junior partners that understand the eDiscovery process and can articulate it to outside counsel or to potential clients. Even if your plan is to fully outsource, having a few key individuals with a deep pool of knowledge is key to ensure effective and defensible application of technology as well as ensuring that eDiscovery technology and staffing solutions are provided at reasonable and predictable pricing levels.
Building your Knowledge Worker Team
For fully in-sourced eDiscovery solutions, the key is to find attorneys and specialist that possess the requisite knowledge at the outset to support and build an eDiscovery counsel or in-house self-contained eDiscovery solution. Firms and corporations looking to develop this self-sufficient approach to eDiscovery need to employ a blend of external hires and current resources trained on the specific platforms to be applied at an enterprise level. Whether the plan is to implement a linear approach to review incorporating a basic processing tool like Law or Nuix and running the hosted review on Relativity or employing advanced analytics and predictive or automated coding, the key to success is to have professionals certified and highly experienced with the selected tools. Some existing personnel can be “trained up” to meet the increased rigors of managing the end-to-end eDiscovery process.
If the approach that your company or firm elects is one of partial or full outsourcing, it makes more sense to rely on your partnered solution providers for niche experts like linguist or statisticians and the need for quality project managers and internal resources that understand the eDiscovery process is heightened. Rather than looking purely externally, rely on the resources provided by your vendors and certifications to help elevate you current internal personnel
Resources for “Training Up”
All of the major technology providers in the eDiscovery space offer proprietary certification in their tools, many also offer webinars and articles or white papers on a wide array of topics relating to case law and changes in the eDiscovery space. These free resources are readily available and most vendors are more than happy to train or speak with your team because educated clients help everyone in the long run. Certifications seminars and coursework are also options although they require a greater monetary investment. The PMP certification, offers project managers a structure and process to approach managing eDiscovery matters that mirrors what many large scale government contracting companies utilize and it is becoming increasingly popular in the eDiscovery space.
The PMP certification requires 35 hours of coursework; documented years of project management experience and costing between $1000-2000 this investment is not unsubstantial. There are countless conferences across the U.S. and internationally that offer 2-3 days of sessions with industry leaders speaking on eDiscovery. Legal Tech, The masters, IQPC, ILTA, CEDF, Carmel Valley and many regional seminars and conventions focus purely on eDiscovery. For a novice these may be a great way to get immersed in eDiscovery, but as with any conference the professionals only get as much out of it as they want to.
Fostering the Knowledge Worker Culture
Keeping and enticing the type of people necessary to keep ahead of the curve in the eDiscovery space is no simple task. Vendors, corporations and law firms alike are courting leaders in this space. Supporting on-going learning and offering the practitioners that you bring into the fold at your organization the ability to explore and test new technology is one aspect of the puzzle. Realizing that the eDiscovery practice area does not conform to the normal ebbs and flows of legal practice is also key. Whether you fully in-source or outsource some or all of your practice, the ability to be adaptable and scalable is also a key component.
The eDiscovery market is rapidly changing, but with the right investments… organizations can get and stay ahead of the game.
The eDiscovery Paradigm has Shifted, Now What?
Technology leveraged solutions have set the blogosphere and the legal industry aflutter with promises of massive cost savings, lightning fast review and everything but the kitchen sink. Predictive coding, advanced analytics, algorithms and statistical analysis are rapidly reshaping the way that document review is conducted. But where does the talk stop and real results begin when it comes to practical application of these new technologies? More importantly, how much can an organization, considering the various solutions on the market, hope to save at the end of the day?
Cost-Benefit Analysis of Computer-Assisted Review
Nearly every practitioner in the eDiscovery space is familiar with the now infamous February opinion by Judge Andrew J. Peck in Da Silva Moore v. Publicis Groupe. This opinion paves the way for increasing utilization of advanced technologies to augment or replace traditional models of linear review. As a result, law firms and corporations no longer need to fear being penalized for using alternative non-linear technologies. Despite this green light, practitioners still need to carefully evaluate the spectrum of tools available, their tangible impact on a case and the potential risks and rewards that the technology poses.
In order to accurately analyze the risk-reward matrix for application of computer leveraged solutions, a practitioner must first understand several factors:
- What specific variation of computer leveraged solution is being prescribed?
- What savings in terms of time and money will be generated from this application?
- How likely or large are the risks posed by application of this technology?
Client Success Story
Computer-Assisted Review (CAR) in Action
Take a recent case study from a client that engaged Hudson Legal to assist in providing a global eDiscovery solution. There was an SEC investigation relating to a series of credit default swap transactions between a European utility company and three large financial institutions. The portfolios of these credit default swaps were under the management of our client under the terms of four separate portfolio management agreements. There was ongoing litigation relating to these swaps in the UK and Germany, when the Securities and Exchange Commission (SEC) issued a request for information surrounding these transactions. To add complexity to these efforts, there were four separate information custodians holding data regarding the transactions.
The client needed to promptly respond to a request for information, and execute discovery with multiple information custodians. They had obligation to provide the requested documents to the SEC quickly and with a minimum amount of unnecessary review of irrelevant documents. They had a further challenge in that the primary custodian of concern had a volume of data that exceeded the combined total of all other data in the case. Traditional eyes on every document review would have cost an estimated $175,000+ and would have entailed manually reviewing 363,000 documents.
The client needed an affordable and accurate way to deliver the requested documents to the SEC quickly, but the traditional linear solutions could not deliver…
To deliver a fast, efficient, and accurate review a bifurcated eDiscovery Solution was implemented. This solution utilized Relativity® computer-assisted review to quickly identify documents relevant to the SEC request, combined with linear review for the smaller document set obtained from multiple custodians.
In this case the risk of non-compliance with the SEC deadline and the potential for a single custodian to derail the entire review motivated the client to leverage computer-assisted review. This yielded a 49% cost savings over traditional linear review as well as substantial reduction in the time of review, with a 95% confidence level (+/- 2.5%). A total of 184,000 documents were ultimately reviewed with a net savings of 178,339 documents and $87,186.
So, Now What?
This solution was by no means simple, nor was it the equivalent of pushing an easy button and waiting for the 229 responsive documents to magically materialize out of the 363,000-document “haystack”. But it does demonstrate how, through thoughtful and selective application of technology, companies and firms can drastically reduce the number of documents that have to be manually analyzed. The two-tiered approach, coupled with statistical sampling, QC and validation create a defensible process in support of the overall application of computer-assisted solutions.
In a world that offers a wide spectrum of global eDiscovery solutions, the role of the practitioner and their eDiscovery solutions provider is central to the success of a computer-assisted document review. Advanced technology has the potential to save valuable time and resources, when deployed in a thoughtful and deliberate way. These technologies are only as effective as the practitioners wielding them, and should not be thought of in a vacuum but rather as an intersection of man and machine that, when optimized, is a time and cost efficient solution to global eDiscovery issues.
Hudson Legal exhibited and presented at the 2012 Carmel Valley e-Discovery Retreat (CVEDR) last week in Monterey, California. Our team, including Mark Yacano, Alys Wiliams, Jennifer Cotler, and Kris Rzepkowski, was there to gather the latest intelligence on eDiscovery trends and hopefully add some intelligence of our own. The event agenda called for focused discussion on eDiscovery in the Cloud, Analytics, Economics of Document Review, and the Erosion of Work Product. A great many of the panel discussions centered around practical concerns and implementation of predictive coding, or the conference moniker of choice, Technology Assisted Review (TAR). It appears that we are moving in the direction of acceptance, one conference at a time.
Not “How” So Much as “What Does it Mean”?
The tone of many of the practitioners and even the judges at CVEDR reflected the inevitability of widespread usage of predictive coding. The intent of the panel, “Technology Assisted Review (TAR) – Are eyes on every item needed?” was to address the collective confidence level in what the computers are deciding on our behalf. Since the conference had already skewered most objections to predictive coding, Greg Buckles instead led the panel toward the effects TAR will have on lawyers and legal professionals. On these topics, Mark Yacano predicted both an ongoing need for “good lawyering” (excellence in the traditional elements of case knowledge) and an increased need for “knowledge worker” skills (technology aptitude to accomplish complex litigation). Mark’s Technology Assisted Review panel contributions are covered in this highlight video:
An Excellent Recap of the Event
For additional takeaways from the event, I encourage you to have a look at the CVEDR recap by Greg Buckles from eDiscovery Journal.
For many, the word “vendor” generates images of a smarmy sales person trying to get you to use the newest widget to tackle an ever increasing volume of data. While that may be the case for a certain number of solution providers in the market, more often than not, professionals in the eDiscovery space have much more to offer. There are wide arrays of low and no-cost resources that can be tapped today to begin this evolution within your eDiscovery team. In the age of eDiscovery 2.0, leading-edge technologies and rapidly evolving case law, your vendor can serve as a resource and an ally if you fully leverage their capabilities.
Case Law and Best Practices
Over the last decade, electronic discovery has been a dynamic and rapidly changing space. eDiscovery service providers that have stayed on top have to stay up to date on case law, best practices and industry changes and trends. These providers often offer a number of resources, from white papers to workflows, case synopsis and articles on the trends in the eDiscovery space. It is in both the service provider and your firm’s interests for practitioners to be knowledgeable of the twist and turns that the market has taken. Whether you are looking for an analysis of the recent predictive analytics focused Da Silva Moore case or an estimate of the number of documents that are in a gigabyte, service providers’ websites are a wealth of relevant information.
Nearly all of the large eDiscovery solution providers offer webinars, white papers and case studies that discuss varying aspects of the eDiscovery space. Many times senior members of highly ranked vendors are former practitioners and understand the unique challenges that your team may face. Solution providers want their potential customers to be savvy and comfortable with the emerging tools in the market, and if your team pulls resources from multiple providers and resources, there is a wealth of readily available information. Continue reading “Getting the Most out of your eDiscovery Vendor Relationships” »