Close
Enter your
text here

Analysis

This Guy Says that Computers Could Eventually Replace Lawyers – In the Courtroom: eDiscovery Trends

Over four years ago, we covered an article in The New York Times that discussed how the use of artificial intelligence could lead to replacing “armies of expensive lawyers” during the eDiscovery process. Now, a new article in The Wall Street Journal online goes a step further, speculating that “computers will eventually pass the legal bar exam and defendants will be given the right to be represented by a computational attorney if they so wish”.

What Big Data Means for the Legal System, written by Robert Plant (not the Led Zeppelin singer, but a professor at the University of Miami, as well as an author and blogger for Harvard Business Review & WSJ Leadership Expert) discusses how artificial intelligence researchers have used the legal domain as an exploratory space to test theories for decades, but with limited success. The advent of big data has changed that, enabling us to analyze not only text but many other data types such as pictures, email, video and voice. As Plant notes, this capability “allows lawyers to look for patterns and correlations across vast data sets previously inaccessible.”

Plant uses analysis of judges’ behavior in cases as an example, suggesting the ability to obtain answers to questions like: “How does the Judge rule on certain types of cases can be studied by date and time? Does the judge dismiss cases for a consistent pattern of reasoning? How do holidays affect decisions? Do they sentence harder at different times of the day?”

Because of big data analytics, Plant predicts that “[m]any of the routine tasks now performed by entry-level lawyers or paralegals will increasingly be undertaken by analytics; case and trial strategies will be developed by legal informatics as will increasingly jury-selection strategies.” As a result, Plant takes the concept to a somewhat controversial conclusion, as follows:

“It is clear that with advances in machine learning, computers will eventually pass the legal bar exam and defendants will be given the right to be represented by a computational attorney if they so wish and thus court rooms could see a truly new form of human computer interaction in which the computer answers the question ‘does the client have a case?’”

Must he “ramble on”? Computers replace lawyers?!? In the courtroom?!? He sure isn’t showing the legal profession a “whole lotta love”, is he? (sorry, I couldn’t resist)

Clearly, we’ve seen the application of artificial intelligence result in significant benefits during the eDiscovery process, with several cases over the past few years endorsing technology assisted review (including this latest case just last month) as well as initiatives to apply technology to information governance (such as the Information Governance Initiative launched last year). Is it that far of a stretch to apply technology to decision making in the courtroom too? Or is the author simply “dazed and confused”? (ok, I really will stop now)

So, what do you think? Will clients someday be represented by computers in the courtroom? Please share any comments you might have or if you’d like to know more about a particular topic.

Clipart from Clipartheaven.com

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Court Agrees with Plaintiffs, Orders Provision for Qualitative Sampling of Disputed Search Terms: eDiscovery Case Law

In the case In Re: Lithium Ion Batteries Antitrust Litigation, No. 13-MD-02420 YGR (DMR) (N.D. Cal., Feb. 24, 2015), California Magistrate Judge Donna M. Ryu ordered the defendants to comply with the plaintiffs’ proposed qualitative sampling process for keyword search terms, citing DaSilva Moore that keywords “often are overinclusive”.

Case Background

In this multi-district litigation (MDL), the court ordered the parties to meet and confer to negotiate a protocol for the use of search terms in December 2014. The parties agreed upon an iterative process for the development and testing of search terms, summarized as follows:

  1. The producing/responding party will develop an initial list of proposed search terms and provide those terms to the requesting party;
  2. Within 30 days, the requesting party may propose modifications to the list of terms or provide additional terms (up to 125 additional terms or modifications); and
  3. Upon receipt of any additional terms or modifications, the producing/responding party will evaluate the terms, and
  4. Run all additional/modified terms upon which the parties can agree and review the results of those searches for responsiveness, privilege, and necessary redactions, or
  5. For those additional/modified terms to which the producing/responding party objects on the basis of overbreadth or identification of a disproportionate number of irrelevant documents, that party will provide the requesting party with certain quantitative metrics and meet and confer to determine whether the parties can agree on modifications to such terms. Among other things, the quantitative metrics include the number of documents returned by a search term and the nature and type of irrelevant documents that the search term returns. In the event the parties are unable to reach agreement regarding additional/modified search terms, the parties may file a joint letter regarding the dispute.

The parties requested the court’s guidance on a single remaining issue regarding their search term protocol: the steps the parties needed to take if they could not resolve a disagreement over a particular term. The plaintiff wanted the defendant to conduct a randomized qualitative sampling of documents retrieved by searching for any disputed terms, and to then allow the plaintiff to review the resulting documents following a privilege review.

The defendants objected to the proposed sampling provision “solely on the grounds that it will provide Plaintiffs with access to non-responsive, irrelevant documents that will be generated through the procedure.” They argued that the provision was unnecessary due to the detailed quantitative information that they agreed to produce regarding disputed search terms and because “there has been no showing that any Defendant’s production is incomplete.” The plaintiffs countered “that the proposed provision incorporates ESI best practices, including those embodied in materials developed by this Court” and contended that “the best way to refine searches and eliminate unhelpful search terms is to analyze a random sample of documents, including irrelevant ones, to modify the search in an effort to improve precision.”

Judge’s Opinion

With regard to the plaintiffs’ argument, Judge Ryu stated simply, “The court agrees. The point of random sampling is to eliminate irrelevant documents from the group identified by a computerized search and focus the parties’ search on relevant documents only. As the court noted in Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012), a problem with keywords ‘is that they often are overinclusive, that is, they find responsive documents but also large numbers of irrelevant documents.’”

Noting, however, that the defendants “raise a valid concern that the sampling protocol will result in the production of irrelevant information”, Judge Ryu ordered the following parameters to alleviate that concern:

  • At the hearing, the plaintiffs agreed that the defendants “may review the random qualitative sample and remove any irrelevant document(s) from the sample for any reason, provided that they replace the document(s) with an equal number of randomly generated document(s)”;
  • The parties also agreed that the defendants would conduct the qualitative sampling only after they had exhausted an agreed-upon quantitative evaluation process;
  • Judge Ryu ordered that irrelevant documents in the sample “shall be used only for the purpose of resolving disputes regarding search terms in this action, and for no other purpose in this litigation or in any other litigation” and that those irrelevant documents, as well as any attorney notes regarding the sample, “shall be destroyed within fourteen days of resolution of the search term dispute”;
  • Only one attorney from each law firm designated co-lead class counsel for Direct Purchaser Plaintiffs and Indirect Purchaser Plaintiffs (total of six attorneys) would be allowed to review the random sample;
  • The plaintiffs could invoke the random sampling process with respect to no more than five search terms per defendant group.

So, what do you think? Was the court right to order random sampling? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Organizations are Increasing Their Investment in Legal Data Analytics, According to New Survey: eDiscovery Trends

According to a new survey of more than 125 legal technology professionals released by Huron Legal earlier this week, 68% of respondents expect their organizations’ investment in legal data analytics to increase in the next two years.

As noted in their announcement, there are, however, several challenges to effectively implement legal data analytics identified by the respondents, including:

  • Securing buy-in from senior leadership on the value of analytics (37% of respondents identified as the biggest challenge);
  • Quality of data (22%);
  • Cost of implementing data analytics effectively (23%),
  • Lack of accessible data (9%);
  • Threat to the practice of law (9%).

Also, 64% of respondents said that the legal industry is behind other industries when it comes to data analytics.

When asked about the one or more areas where data analytics is currently being applied in their organization, respondents replied as follows:

  • 64% of respondents indicated that data analytics is currently being applied in eDiscovery;
  • A third (33%) noted litigation management (i.e. case strategy, staffing);
  • Nearly a quarter (24%) indicated law department management (i.e., matter budgeting, legal project management);
  • Almost a third (29%) selected information governance;
  • 17% pointed to outside counsel/law firm management (i.e., staffing, etc.);
  • 16% noted rate/fee negotiation;
  • 10% stated M&A evaluation.

Only about 10% of respondents said that data analytics is not being applied at all within their organization. Not surprisingly, 45% of respondents identified cost management and savings as the biggest benefit of data analytics in the legal industry.

“It is clear that the legal industry is starting to recognize the power of data analytics, as evidenced by the burgeoning use of emerging legal technology and the willingness to increase investment in analytics,” said Nathalie Hofman, managing director at Huron Legal. “However, in order to realize analytics’ full potential, legal professionals at all levels must be educated about how to best to use them. Analytics can inform decisions in a number of areas, leading to greater efficiency and cost effectiveness.”

No survey would be complete without a handy-dandy infographic to summarize the results, click here to view the infographic for this survey by Huron Legal.

So, what do you think? Do these results reflect a promising trend? Or do they reflect that we still have a long way to go? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Judge Peck Wades Back into the TAR Pits with ‘Da Silva Moore Revisited’: eDiscovery Case Law

In Rio Tinto Plc v. Vale S.A., 14 Civ. 3042 (RMB)(AJP) (S.D.N.Y. Mar. 2, 2015), New York Magistrate Judge Andrew J. Peck approved the proposed protocol for technology assisted review (TAR) presented by the parties, but made it clear to note that “the Court’s approval ‘does not mean. . . that the exact ESI protocol approved here will be appropriate in all [or any] future cases that utilize [TAR].’”

Judge’s Opinion

Judge Peck began by stating that it had been “three years since my February 24, 2012 decision in Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182 (S.D.N.Y. 2012)” (see our original post about that case here), where he stated:

“This judicial opinion now recognizes that computer-assisted review [i.e., TAR] is an acceptable way to search for relevant ESI in appropriate cases.”

Judge Peck then went on to state that “[i]n the three years since Da Silva Moore, the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” (Here are links to cases we’ve covered related to TAR in the last three years). He also referenced the Dynamo Holdings case from last year, calling it “instructive” in its approval of TAR, noting that the tax court ruled that “courts leave it to the parties to decide how best to respond to discovery requests”.

According to Judge Peck, the TAR issue still to be addressed overall “is how transparent and cooperative the parties need to be with respect to the seed or training set(s)”, commenting that “where the parties do not agree to transparency, the decisions are split and the debate in the discovery literature is robust”. While observing that the court “need not rule on the need for seed set transparency in this case, because the parties agreed to a protocol that discloses all non-privileged documents in the control sets”, Judge Peck stated:

“One point must be stressed — it is inappropriate to hold TAR to a higher standard than keywords or manual review. Doing so discourages parties from using TAR for fear of spending more in motion practice than the savings from using TAR for review.”

While approving the parties’ TAR protocol, Judge Peck indicated that he wrote this opinion, “rather than merely signing the parties’ stipulated TAR protocol, because of the interest within the ediscovery community about TAR cases and protocols.” And, he referenced Da Silva Moore once more, stating “the Court’s approval ‘does not mean. . . that the exact ESI protocol approved here will be appropriate in all [or any] future cases that utilize [TAR]. Nor does this Opinion endorse any vendor . . ., nor any particular [TAR] tool.’”

So, what do you think? How transparent should the technology assisted review process be? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Jason R. Baron of Drinker Biddle & Reath LLP: eDiscovery Trends

This is the fifth of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Jason R. Baron. An internationally recognized speaker and author on the preservation of electronic documents, Jason is a member of Drinker Biddle’s Information Governance and eDiscovery practice and also a member of the leadership team for the Information Governance Initiative. Jason previously served as Director of Litigation for the U.S. National Archives and Records Administration (NARA) and as trial lawyer and senior counsel at the Department of Justice. He was a founding co-coordinator of the National Institute of Standards and Technology TREC Legal Track, a multi-year international information retrieval project devoted to evaluating search issues in a legal context. He also founded the international DESI (Discovery of Electronically Stored Information) workshop series, bringing together lawyers and academics to discuss cutting-edge issues in eDiscovery.

What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

Well, it’s not going to come as a big surprise to you that I have seen more sessions related to information governance. Those of us who are part of the movement here may see IG under every rock, but I did make a humorous aside at a panel that I participated in on the first day of LegalTech: “Welcome to the 29th session on Information Governance.” It seems to me that we have gone through a hype curve that Gartner talks about with both technology assisted review and with big data, and I think we are definitely going up that same curve on information governance. Whether that will level off at some point, I don’t know. But, I did see it as a more major element of this year’s conference. And, it’s not just that there was a dedicated track to the topic of IG here at LegalTech, but an increased focus on talking about IG issues across several tracks and in new and different ways.

Of course, as we came upon the year 2015, we are now living in a post-Sony, post-Snowden world. If you had to do a Time magazine cover, it might be called the year of the data breach. In my mind the increased focus on cybersecurity issues is a leveraging opportunity for those of us in the information governance community, given that it’s a moment where the C-Suite in corporations is thinking about data breaches all around the enterprise, and also going beyond that to think about their data. Because it’s one thing to secure the borders – I draw a little square when I diagram this out – and to ensure constant vigilance. But it’s another thing to figure out what’s inside the borders that you’re securing. And that’s where the information governance proposition shows up.

So, while the C-Suite is focused on cybersecurity threats, they should also be having a conversation about the amount of data they’re accumulating, the legacy data that they have, how are they getting visualization into the data they have, how are they maximizing the opportunities in terms of ROI on the data that’s being collected on the consumer side, and figuring out what’s of high value and what’s of low value. This is something that the records profession has attempted to do for decades, but we’re in a new world of big data and we need to apply 21st century thinking to this. So, what I see here at the conference is an increased attention on IG and an increased attention on cybersecurity generally and I think that those are “twins” – they go together conceptually.

The world is accelerating in terms of the pace of change of technology and if lawyers aren’t competent in understanding new technologies that they can utilize in their practices across the board – not just in eDiscovery but as a general practice – then they are going to lose out to others in the Darwinian sense. So, I don’t think LegalTech has ever been more important than right now. I think we need to expand our horizon beyond eDiscovery collection, preservation and production to the greater world of analytics and other new things that are happening in the business space. And aside from analytics and IG itself, it would be interesting for LegalTech to talk about artificial intelligence and deep learning and about how robots and software may eventually be replacing lawyers in terms of legal research. It has been very much an eDiscovery-centric conference for a long time, but that’s not everything that’s encompassed in the world of legal practice. So, it would be great to see LegalTech expand beyond its current focus.

As for the possibility of moving LTNY to a different time of year, what could be better than snow storms, slush and ice in New York City in February? Of course, if you’re asking me if I’d like to see it in Hawaii instead, the answer is yes. 🙂

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

No question about it – there is no known Congressional opposition to the rules and we all expect them to be effectuated. Some close colleagues of mine have made the point that Rule 37 particularly will enormously help large defendants in being able to push back on the trend towards over-preservation of data caught up in litigation. If this holds true, the rules will support an important pillar of practicing good information governance, namely, finding ways in which corporations can continue to dispose of information without running n the risk of spoliation claims in litigation.

I have not a contrary view, but let’s just call it a “view from the mountaintop.” I wrote a letter on behalf of the Information Governance Initiative which is on our web site. It was an open letter to the Federal Rules Committee that was looking at the thousands of comments that came in regarding the proposed rules changes. Basically, the IGI’s position is that the changes to Rule 37 and Rule 26 may be welcome; however, what we believe in even more strongly is that real changes will come with technology and with cultural change. We’re all advocates, at least at the IGI and in my own legal practice at Drinker Biddle, in seeking more optimal ways to automate processes and the overall workflow, to essentially reduce the burden on individuals at all points in the eDiscovery process and in the greater IG space.

We’re also advocates in support of Rule 1, which now more clearly emphasizes cooperation in discovery (via the Notes section of the proposed rule which states “Effective advocacy is consistent with – and indeed depends upon – cooperative and proportional use of procedure.”). I have been very proud to be associated with The Sedona Conference® and the Cooperation Proclamation that it issued. The late Richard Braman spearheaded this movement – as discussed in Joe Looby’s film The Decade of Discovery. Lawyers know that The Sedona Conference has been advocating for lawyers and judges to sign on to a different practice culture, at least at the Meet and Confer stage of litigation, where there is more transparency and more open discussion among lawyers in trying to narrow issues that opposing sides feel strongly about. The ideal result is that the very narrowest set of issues is presented to a judge going forward. I think the culture of cooperation is taking hold. It is not “Pollyanna-ish” to think that, in every district in the country, there will be one or more judges who are aggressively pushing lawyers to be more open and cooperative earlier in the process.

The technology in the eDiscovery space is getting to a level of complexity that you simply have to have a conversation with opposing counsel about preservation issues and about search and access issues early on in the game. We just all need to “raise our games” in terms of being competent to talk about tools to make the eDiscovery process more efficient. I am one who holds the view that enormous resources being continuously devoted to tinkering with the Federal Rules of Civil Procedure misses the larger picture here, which is that the pace of change of technology is so great, that no Rules can ever catch up, as such. As lawyers, we need to give our best advice to clients on how to improve their processes to lower costs. And of course, many remain hopeful that there will be less of a “dagger over the heads” of large entities in litigation with the rules changes going into effect.

What are you working on that you’d like our readers to know about?

Glad you asked, Doug! It has been quite a ride for the past 15 months working in the private sector after 34 years in the government, including at the Justice Department, and being Director of Litigation at the National Archives. The problems faced in the public sector are profound, with respect to information governance challenges, both from a security perspective and well as with respect to record keeping, open government and open access in the digital age. But I now see many of the same issues here that the private sector faces as well. We all live in a world of litigation of increasing complexity. How you get your arms around the need to preserve some of your high value data, while segregating other portions of your data including legacy data that is to be considered low value, is a profound IG issue. I am very fortunate to now be part of a practice group at Drinker Biddle that is talking about all of these important information governance issues, in ways that we hope will be attractive to clients.

I’ve also been having a great time in working with Barclay Blair, Bennett Borden and Jay Brudz as part of the Information Governance Initiative, which is a new think tank and consortium launched a year ago at Legaltech (in 2014). We now have a whole a large number of sponsors and lots of activities continuously going on, including boot camps, dinners, benchmark studies, white papers, and a conference in Chicago in May about Chief Information Governance officers (a new position in the IG space).

I have also had the pleasure of going around the US and the world to be part of screenings of a film by Joe Looby calledThe Decade of Discovery (covered by this blog here, here and here; click here for the latest listing of film screening locations and dates), which traces the evolution of search in eDiscovery since around the year 2000. Joe has done a wonderful job of capturing in a 60 minute documentary the issues we all have been facing. In particular, the film is a tribute to the late Richard Braman and his vision for dialogue and cooperation in discovery. The movie also talks about what I had the privilege of doing, in terms of being tasked to search for White House email, and the film also involves a number of prominent judges and lawyers. So, for the next few months, I’ll continue our world tour with screenings of the film in law schools and other venues talking about these issues.

It’s very important to me to get a message out to younger lawyers and law students in particular that this field of eDiscovery and information governance is growing, it’s a hot field, an interesting field and one where you can be what we call a “SME” — a subject matter expert – in a pretty short amount of time. So, for anyone reading this, the message is “get on board”, become an expert in some niche in this space and in a relatively still chilly market for lawyers, you can distinguish yourself. I would be happy to have that conversation with anyone who is interested in being part of the dialogue about eDiscovery and information governance.

Thanks, Jason, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Tom O’Connor of Advanced Discovery: eDiscovery Trends

This is the fourth of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Tom O’Connor. Tom is a nationally known consultant, speaker and writer in the area of computerized litigation support systems. A frequent lecturer on the subject of legal technology, Tom has been on the faculty of numerous national CLE providers and has taught college level courses on legal technology. Tom’s involvement with large cases led him to become familiar with dozens of various software applications for litigation support and he has both designed databases and trained legal staffs in their use on many of the cases mentioned above. This work has involved both public and private law firms of all sizes across the nation. Tom is the Director of the Gulf Coast Legal Technology Center in New Orleans and he just joined Advanced Discovery as a Senior ESI Consultant in January.

What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

Like all LegalTech shows, it’s hectic. I come to New York thinking, “hey, I’m going to go have a good dinner one night, maybe go down to Times Square” and by 8pm, I’m exhausted. You talk to people all day and at the end of the show day there’s a group of people who want to go out to parties and I’m going across the street to the 24 hour deli and getting a sandwich. It’s always busy and there’s always a ton of things going on at the show. It is great, though, that I get people that I don’t get to see on a regular basis, like Michael Arkfeld and George Socha, so this show is really priceless for me to get to talk to them. Craig (Ball) and George and I just had lunch and talked about Continuous Active Learning and those are the sorts of discussions that LTNY facilitates.

Last night, when I was grabbing my sandwich at the end of the day, Henry Dicker (Executive Director of LegalTech) came walking in and we had a great talk about LegalTech and their worldwide schedule. Henry and I have been doing these shows for about the same amount of time. So, it was interesting getting his perspective in a quiet moment about how the show is going and the attendance and so forth. ALM has apparently been having great success with their overseas shows. I think Henry said that, at the end of the year, he was in Singapore, Taiwan, Hong Kong and mainland China – all within five weeks. So, they have been having great success internationally.

As for the show itself, if you’re looking for new product information and what the latest and greatest is across a wide swath of product types (i.e., every type of legal software imaginable), LTNY, because it is in late January/early February has always been the “granddaddy of them all”. Vendors like to get new releases out for the show, make announcements, etc. ILTA is probably the better show for highly technical information and IT types because it’s where they start opening the hood and popping the carburetor off and boring out the engine. That being said, Henry has a great relationship with ILTA and they have an ILTA track here. But, for what LTNY does, which is cut across all products, it’s unbeatable.

The one issue I have with LTNY (which is not really a negative because the slack is picked up by the ABA Tech Show) is the over-emphasis on BIG firm solutions. BIG firms, BIG corporations, BIG data – everything’s BIG. But, the ABA Tech Show does a good job in picking up and emphasizing small to mid-sized firms and solutions for them.

As for trends for this year, every year there’s a buzzword or two that interests people. The one that I think is particularly discussed a lot this year (again, by big firms) is cybersecurity. After last year, with the big security breaches at Sony and Home Depot, I think that’s in the forefront of people’s discussions right now. I think that’s a very hot topic. Information Governance continues to be a hot topic as well – Patrick Burke had a great program on Monday at the Cardozo Law School – so, I think that continues to be (if you’ll pardon the pun) a huge interest for attendees here. The third area of interest that I’m hearing a lot about is analytics – how to use computer tools of all sorts before you get to review and, in some cases, before you even get to the processing stage and pare down that huge amount of data. Using those tools to try to reduce that volume and get a handle on what’s relevant. A few years ago, the hot topic was early case assessment. It’s a continuation of that trend, but with much more sophisticated tools and ability to do it.

As for moving LTNY to a different time of year, yes, I’ve been advocating for years that they consider flipping LegalTech West and LegalTech East. Have LegalTech West at this time of year and go to San Francisco (where the show will be held this year) or Los Angeles (where the show has been held in past years) during the wintertime and New York in the late spring or early summer. I understand there are long term contracts and it would take a while, but it sure would help things with the weather and travel issues. Once you delay a flight for bad weather by half an hour or 45 minutes, everything goes “to hell in a hand basket” quickly. So, yes, I would love to see it moved.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I don’t think the changes were necessarily for the better. The revised Rule 37(e) still benefits corporate defendants, lowering their burden and making it easier for them to not preserve data. Again, I think that only affects a small percentage of litigants. To paraphrase Judge (Shira) Scheindlin, she essentially said that she just doesn’t think it will have an “in the trenches” sort of an impact. It may in one or two cases, but she didn’t see it as being all that big a deal with the amount of cases that they see, at least in her court. Certainly where I live, in New Orleans and throughout the southeast, the people who I work with in more rural or semi-rural jurisdictions with smaller cases and smaller case loads, there is no impact.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

Clearly, we’ve advanced. I think there is better understanding by some attorneys, especially corporate counsel, which I think have a much firmer grasp of what’s going on in eDiscovery. Four or five years ago, Michael Arkfeld said probably only 2% of attorneys really got eDiscovery and understood all of the rules. We’ve improved, but, unfortunately, I think we’ve only gone to about 10%. I think there’s still a lot of work to be done. Law schools are still dragging their feet on what they see as some sort of technical training. It’s not in their “wheelhouse”, not in their charter. I think that’s changing and I think you’re going to see a lot more aggressive legal education around these issues in law schools in the next year or so.

I think that you’re seeing the judiciary be very aggressive in demanding competence and, with some of the local rules changes and ethics opinions (such as the recent one in California), requiring some sort of affidavit or certification that you have enough knowledge to make a pleading in this field. I think we will continue to see more of that. It’s great when we see Judge Scheindlin say that or Judge (John) Facciola or Judge (Andrew) Peck or other big names in the field, but I see judges in the federal district courts in places like New Orleans, Mobile and Mississippi also be much more demanding of competence. So, I don’t think it’s isolated to the northeast or the big name judges, it’s something that the judiciary as a whole is pushing. That has probably been the biggest change.

What are you working on that you’d like our readers to know about?

I have a new position – doing what I’ve always been doing, but now for a national company – heading up the consulting services for Advanced Discovery. I’m working with clients on cases, trying to help them find the right tools to answer these problems that we’re talking about in this interview. And, as always, I’m performing a lot of pro bono work for the Louisiana and Mississippi state bars because we have a very high concentration of solo and small firm attorneys “in our neck of the woods”. They are struggling with all sorts of education issues, especially around eDiscovery and technology updates. That’s a major undertaking, from Houston to Pensacola, in states that are poorer and mostly rural. You think about New Orleans or Mobile, but when you get above that I-10 line, you get to an area that’s underserved by the legal community in general and by technology. Courts, attorneys and clients are all struggling with these issues down there.

Thanks, Tom, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Alon Israely, Esq., CISSP of BIA: eDiscovery Trends

This is the third of the 2015 LegalTech New York (LTNY) Thought Leader Interview series. eDiscovery Daily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?
  2. After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?
  3. Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Alon Israely. Alon is the Manager of Strategic Partnerships at Business Intelligence Associates, Inc. (BIA) and currently leads the Strategic Partner Program at BIA. Alon has over eighteen years of experience in a variety of advanced computing-related technologies and has consulted with law firms and corporations on a variety of technology issues, including expert witness services related to computer forensics, digital evidence management and data security. Alon is an attorney and a Certified Information Systems Security Professional (CISSP).

What are your general observations about LTNY this year and how it fits into emerging trends? Do you think American Lawyer Media (ALM) should consider moving LTNY to a different time of year to minimize travel disruptions due to weather?

I didn’t get to spend as much time on the floor and in the sessions as I would like because, for me, LTNY has become mostly meetings. On the one hand, that doesn’t help me answer your question as completely as I could but, on the other hand, it’s good for ALM because it shows that there’s business being conducted. A big difference between this year and last year (which may be reflective of our activity at BIA, but others have said it as well), is that there has been more substantive discussions and deal-making than in the past. And, I think that’s what you ultimately want from an industry conference.

Also, and I’m not sure if this is because of attrition or consolidation within the industry, but there seems to be more differentiation among the exhibitors at this year’s show. It used to be that I would walk around LegalTech with outside investors who are often people not from the industry and they would comment that “it seems like everybody does the same thing”. Now, I think you’re starting to see real differentiation, not just the perception of differentiation, with exhibitors truly offering solutions in niche and specialized areas.

As for whether ALM should consider moving the show, absolutely! It seems as though the last few years that has been one of the conversation topics among many vendors as they’re setting up before LegalTech as they ask “why is this happening again” with the snow and what-not. We’ve certainly had some logistics problems the past couple of years.

I do think there is something nice about having the show early in the year with people having just returned from the holidays, getting back into business near the beginning of Q1. It is a good time as we’re not yet too distracted with other business, but I think that it would probably be smart for ALM to explore moving LTNY to maybe the beginning of spring. Even a one-month move to the beginning of March could help. I would definitely keep the show in New York and not move the location; although, I would think that they could consider different venues besides the Hilton without affecting attendance. While some exhibitors might say keep it at this time of year to coordinate with their release schedules, I would say that’s a legacy software answer. Being in the SaaS world, we have updates every few weeks, or sooner, so I think with the new Silicon Valley approach to building software, it shouldn’t be as big a deal to match a self- created release schedule. Marketing creates that schedule more than anything else.

After our discussion last year regarding the new amendments to discovery provisions of the Federal Rules of Civil Procedure, additional changes were made to Rule 37(e). Do you see those changes as being positive and do you see the new amendments passing through Congress this year?

I think that they’re going to pass Congress. I’ve been focusing on the changes related to preservation as it seems that most noteworthy cases, especially those involving Judge (Shira) Scheindlin, involve a preservation mistake somewhere. For us at BIA, we feel the Rules changes are quite a validation of what we’re doing with respect to requiring counsel to meet early to discuss discovery issues, and to force the issue of preservation to the forefront. Up until these changes, only savvy and progressive counsel were focused on how legal hold and preservation was being handled and making sure, for example, that there wasn’t some question eight months down the road about some particular batch of emails. The fact that it is now codified and that’s part of the pre-trial “checklist” is very important in creating efficiencies in discovery in general and it’s great for BIA, frankly, because we build preservation software. It validates needing an automated system in your organization which will help you comply.

Last year, most thought leaders agreed that, despite numerous resources in the industry, most attorneys still don’t know a lot about eDiscovery. Do you think anything has been done in the past year to improve the situation?

I hate to sound pessimistic, and obviously I’m generalizing from my experience, but it feels like attorneys are less interested in learning about eDiscovery and more interested in being able to rely on some sort of solution, whether that solution is software or a service provider, to solve their problems. It’s a little bit of a new “stick your head in the sand” attitude. Before, they ignored it; now, they just want to “find the right wrench”. It’s not always just one wrench and it’s not that easy. It is important to be able to say “we use this software and that software and this vendor and here’s our process” and rely on that, but the second step is to understand why you are relying on that software and that vendor. I think some lawyers will just say “great, I’ll buy this software or hire this vendor and I’m done” and check that check box that they now have complied with eDiscovery but it’s important to do both – to purchase the right software or hire the right vendor AND to understand why that was done.

Certainly, vendors may be part of the problem – depending upon how they educate. At BIA, we promote TotalDiscovery as a way of not having to worry about your preservation issues, not having data “fall through the cracks” and that you’ll have defensible processes. We do that but, at the same time, we also try to educate our clients too. We don’t just say “use the software and you’re good to go”, we try to make sure that they understand why the software benefits them. That’s a better way to sell and attorneys feel better about their decision to purchase software when they fully understand why it benefits them.

What are you working on that you’d like our readers to know about?

As I already mentioned, BIA has TotalDiscovery, our SaaS-based preservation software and we are about to release what we call “real-time processing”, which effectively allows for you to go from defensible data collections to searching that collected data in minutes. So, you can perform a remote collection and, within a few minutes of performing that collection, already start to perform eDiscovery caliber searches on that data. We call it the “time machine”. In the past, you would send someone out to collect data, they would bring it back and put it into processing software, then they would take the processed data and they’d search it and provide the results to the attorneys and it would be a three or four week process.

Instead, our remote collection tool lets you collect “on the fly” from anywhere in the world without the logistics of IT, third-party experts and specialized equipment and this will add the next step to that, which is, after collecting the data in a forensically sound manner, almost immediately TotalDiscovery will allow you to start searching it. This is not a local tool – we’re not dropping agents onto someone’s machine to index the entire laptop, we’re collecting the data and, using the power of the cloud and new technology to validate and index that data at super high speeds so that users (corporate legal departments and law firms) can quickly perform searches, view the documents and the hit highlights, as well as tag and export documents and data as needed. It changes the way that the corporate user handles ECA (early case assessment). They get defensible collection and true eDiscovery processing in one automated workflow. We announced that new release here at LegalTech, we’ll be releasing it in the next few weeks and we’re very excited about it.

Thanks, Alon, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

EDRM Publishes Updated Statistical Sampling Guide with Public Comments: eDiscovery Trends

In 2012, we covered EDRM’s initial announcement of a new guide called Statistical Sampling Applied to Electronic Discovery and we covered the release of the updated guide (Release 2) back in December. That version of the guide has now been updated with feedback from the comment period.

The public comment period for EDRM’s Statistical Sampling Applied to Electronic Discovery, Release 2, published on the EDRM website here, concluded on January 9, 2015 and EDRM has announced the release of the updated guide today.

The guide ranges from the introductory and explanation of basic statistical terms (such as sample size, margin of error and confidence level) to more advanced concepts such as binomial distribution and hypergeometric distribution. Bring your brain.

The guide includes an accompanying Excel spreadsheet which can be downloaded from the page, EDRM Statistics Examples 20150123.xlsm, which implements relevant calculations supporting Sections 7, 8 and 9 of the 10 section guide. The spreadsheet was developed using Microsoft Excel 2013 and is an .xlsm file, meaning that it contains VBA code (macros), so you may have to adjust your security settings in order to view and use them. You’ll also want to read the guide first (especially sections 7 thru 10) as the Excel workbook is a bit cryptic.

Even though the public comment period has ended, comments can still be posted at the bottom of the EDRM Statistical Sampling Release 2 page, or emailed to the group at sampling@edrm.net or you can fill out their comment form here.

As I noted back in December, the old guide, from April of 2012, is still on the EDRM site. You’ll want to make sure you go to the new updated guide, located here.

So, what do you think? Do you perform statistical sampling to verify results within your eDiscovery process? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

The First 7 to 10 Days May Make or Break Your Case: eDiscovery Best Practices

Having worked with a client recently that was looking for some guidance at the outset of their case, it seemed appropriate to revisit this topic here.

When a case is filed, several activities must be completed within a short period of time (often as soon as the first seven to ten days after filing) to enable you to assess the scope of the case, where the key electronically stored information (ESI) is located and whether to proceed with the case or attempt to settle with opposing counsel. Here are several of the key early activities that can assist in deciding whether to litigate or settle the case.

Activities:

  • Create List of Key Employees Most Likely to have Documents Relevant to the Litigation: To estimate the scope of the case, it’s important to begin to prepare the list of key employees that may have potentially responsive data. Information such as name, title, eMail address, phone number, office location and where information for each is stored on the network is important to be able to proceed quickly when issuing hold notices and collecting their data. Some of these employees may no longer be with your organization, so you may have to determine whether their data is still available and where.
  • Issue Litigation Hold Notice and Track Results: The duty to preserve begins when you anticipate litigation; however, if litigation could not be anticipated prior to the filing of the case, it is certainly clear once the case if filed that the duty to preserve has begun. Hold notices must be issued ASAP to all parties that may have potentially responsive data. Once the hold is issued, you need to track and follow up to ensure compliance. Here are a couple of posts from 2012 regarding issuing hold notices and tracking responses.
  • Interview Key Employees: As quickly as possible, interview key employees to identify potential locations of responsive data in their possession as well as other individuals they can identify that may also have responsive data so that those individuals can receive the hold notice and be interviewed.
  • Interview Key Department Representatives: Certain departments, such as IT, Records or Human Resources, may have specific data responsive to the case. They may also have certain processes in place for regular destruction of “expired” data, so it’s important to interview them to identify potentially responsive sources of data and stop routine destruction of data subject to litigation hold.
  • Inventory Sources and Volume of Potentially Relevant Documents: Potentially responsive data can be located in a variety of sources, including: shared servers, eMail servers, employee workstations, employee home computers, employee mobile devices, portable storage media (including CDs, DVDs and portable hard drives), active paper files, archived paper files and third-party sources (consultants and contractors, including cloud storage providers). Hopefully, the organization already has created a data map before litigation to identify the location of sources of information to facilitate that process. It’s important to get a high level sense of the total population to begin to estimate the effort required for discovery.
  • Plan Data Collection Methodology: Determining how each source of data is to be collected also affects the cost of the litigation. Are you using internal resources, outside counsel or a litigation support vendor? Will the data be collected via an automated collection system or manually? Will employees “self-collect” any of their own data? If so, important data may be missed. Answers to these questions will impact the scope and cost of not only the collection effort, but the entire discovery effort.

These activities can result in creating a data map of potentially responsive information and a “probable cost of discovery” spreadsheet (based on initial estimated scope compared to past cases at the same stage) that will help in determining whether to proceed to litigate the case or attempt to settle with the other side.

So, what do you think? How quickly do you decide whether to litigate or settle? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscoveryDaily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

DESI Wants Your Input! – eDiscovery Trends

It’s not Desi Arnaz who wants it, but the Discovery of Electronically Stored Information (DESI) VI workshop, which is being held at the University of San Diego on June 8 as part of the 15th International Conference on Artificial Intelligence & Law (ICAIL 2015).

The DESI VI workshop aims to bring together researchers and practitioners to explore innovation and the development of best practices for application of search, classification, language processing, data management, visualization, and related techniques to institutional and organizational records in eDiscovery, information governance, public records access, and other legal settings. Ideally, the aim of the DESI workshop series has been to foster a continuing dialogue leading to the adoption of further best practice guidelines or standards in using machine learning, most notably in the eDiscovery space. Organizing committee members include Jason R. Baron of Drinker Biddle & Reath LLP and Douglas W. Oard of the University of Maryland.

Previous DESI workshops were held in places like Palo Alto, London, Barcelona, Rome and Pittsburgh (maybe not as exciting as the other locales, but they don’t have six Super Bowl championships 🙂 ).

DESI VI invites “refereed” papers (due by April 10 and limited to 4-10 pages) describing research or practice. After peer review, accepted papers will be posted on the DESI VI website and distributed to workshop participants. Authors of accepted refereed papers will be invited to present their work either as an oral or a poster presentation. They also invite “unrefereed” position papers (due by May 1and typically 2-3 pages) describing individual interests for inclusion (without review) on the DESI VI Web site and distribution to workshop participants.  Submissions should be sent by email to Doug Oard (oard@umd.edu) with the subject line DESI VI POSITION PAPER or DESI VI RESEARCH PAPER. All submissions received will be acknowledged within 3 days.

Participation in the DESI VI workshop is open. Submission of papers is encouraged, but not required.

For more information about the workshop, click the Call for Submissions here (or here for the PDF version). The Call for Submissions also includes a References section which includes papers and cases useful as background reading for the focus of the workshop – even if you don’t plan to go, it’s a good list to check out. I’m happy to say that most of the cases on the list have been covered by this blog (including Da Silva Moore, EORHB v. HOA Holdings, Global Aerospace Inc., et al. v. Landow Aviation, L.P. and others.

So, what do you think? Are you going to attend? Submit a paper? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscoveryDaily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.