Analysis

If You’re an eDiscovery Professional Interested in Predictive Coding, Here is a Site You May Want to Check Out: eDiscovery Trends

On his Complex Discovery site, Rob Robinson does a great job of analyzing trends in the eDiscovery industry and often uses surveys to gauge sentiment within the industry for things like industry business confidence.  Now, Rob is proving and overview and conducting a survey regarding predictive coding technologies and protocols for representatives of leading eDiscovery providers that should prove interesting.

On his site at Predictive Coding Technologies and Protocols: Overview and Survey, Rob notes that “it is increasingly more important for electronic discovery professionals to have a general understanding of the technologies that may be implemented in electronic discovery platforms to facilitate predictive coding of electronically stored information.”  To help in that, Rob provides working lists of predictive coding technologies and TAR protocols that is worth a review.

You probably know what Active Learning is.  Do you know what Latent Semantic Analysis is? What about Logistic Regression?  Or a Naïve Bayesian Classifier?  If you don’t, Rob discusses definitions for these different types of predictive coding technologies and others.

Then, Rob also provides a list of general TAR protocols that includes Simple Passive Learning (SPL), Simple Active Learning (SAL), Continuous Active Learning (CAL) and Scalable Continuous Active Learning (S-CAL), as well as the Hybrid Multmodal Method used by Ralph Losey.

Rob concludes with a link to a simple three-question survey designed to help electronic discovery professionals identify the specific machine learning technologies and protocols used by eDiscovery providers in delivering the technology-assisted review feature of predictive coding.  It literally take 30 seconds to complete.  To find out the questions, you’ll have to check out the survey.  ;o)

So far, Rob has received 19 responses (mine was one of those).  It will be interesting to see the results when he closes the survey and publishes the results.

So, what do you think?  Are you an expert in predictive coding technologies and protocols?  Please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

TAR Rules for the New York Commercial Division: eDiscovery Trends

File this one under stories I missed until yesterday.  We’ve seen plenty of cases where the use of Technology Assisted Review (TAR) has been approved and even one this year where a protocol for TAR was ordered by the court.  But, here is a case of a jurisdiction that has proposed and adopted a rule to encourage use of the most efficient means to review documents, including TAR.

As reported in the New York Law Journal (NY Commercial Division Gives Fuller Embrace to E-Discovery Under New Rule, written by Andrew Denney), the New York Commercial Division has adopted a new rule to support the use of technology-assisted document review in appropriate cases.

As the author notes, plenty of commercial litigants are already using technology to help them breeze through potentially labor-intensive tasks such as weeding out irrelevant documents via predictive coding or threading emails for easier reading.  But unlike the U.S. District Court for the Southern District of New York, which has developed a substantial volume of case law bringing eDiscovery proficiency to the bar (much of it authored by recently retired U.S. Magistrate Judge Andrew Peck), New York state courts have provided little guidance on the topic.

Until now.  The new rule, proposed last December by the Commercial Division Advisory Council and approved last month by Lawrence Marks, the state court system’s chief administrative judge and himself a former Commercial Division jurist, would fill the gap in the rules, said Elizabeth Sacksteder, a Paul, Weiss, Rifkind, Wharton & Garrison partner and member of the advisory council.  That rule, to be incorporated as a subpart of current Rule 11-e of the Rules of the Commercial Division, reads as follows:

The parties are encouraged to use the most efficient means to review documents, including electronically stored information (“ESI”), that is consistent with the parties’ disclosure obligations under Article 31 of the CPLR and proportional to the needs of the case.  Such means may include technology-assisted review, including predictive coding, in appropriate cases.

Muhammad Faridi, a commercial litigator and a partner at Patterson Belknap Webb & Tyler, said that using technology-assisted review is nothing new to most practitioners in the Commercial Division, but it is “revolutionary” for the courts to adopt a rule encouraging its use.  Maybe so!

So, what do you think?  Are you aware of any other rules out there supporting or encouraging the use of TAR?  If so, let us know about them!  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices, Part Four

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was published on Monday, part two was published on Tuesday and part three was published yesterday.  Here’s the fourth and final part.

Conclusions

The litigation world has changed dramatically in the past fifty years.  In 1962, 11.5% of federal civil cases were disposed of by trial. By 2002, that figure had plummeted to 1.8% despite a five-fold increase in the number of civil filings. Those figures aren’t a result of increased eDiscovery activity.  (ABA Journal of Litigation 2004, https://www.americanbar.org/content/dam/aba/publishing/litigation_journal/04winter_openingstatement.authcheckdam.pdf)

And in state courts, a U.S. Justice Department study of the nation’s 75 largest counties found that nearly 97% of civil cases are settled or dismissed without a trial. The number of cases going to trial fell from 22,451 in 1992 to 11,908 in 2001, according to the same study. (source: Bureau of Justice Statistics)

But is eDiscovery the culprit? Yes, eDiscovery is expensive but numerous other factors, especially ADR and extended motion practice, have been much greater contributors to the reduction in cases going to trial.  And current trends in early case assessment and early data assessment, much more than the overall costs of eDiscovery, may be playing a higher part in ongoing reduction of trials than previously understood.

And that decline in the number of trials may not be the reduction in access to justice that it appears at first glance. Ediscovery is still an effective tool in ADR, class actions and MDL practice, which has replaced much of standard litigation, a factor that doesn’t appear in traditional trial statistics.

Litigation as a process that preserves legal remedies seems to be as robust as ever. The modern difference is that the traditional jury trial is no longer the final resolution of that process.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices, Part Three

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was published on Monday and part two was published on Tuesday.  Here’s the third part.

eDiscovery Considerations

So where does eDiscovery fall in this discussion? Where does it fall in the list of factors noted above which influence the decline of trials? How do we use eDiscovery to decide if a case should be settled?

First of course is the proportionality analysis that is so much a part of the current rules. Simply put, is a settlement offer reasonable within the scope of the monetary value of the litigation? If it is wildly disproportionate to the amounts in controversy, then you will need to decline the settlement offer. If it is reasonable, but not quite acceptable, then it is appropriate to make a counter-proposal.

Current eDiscovery tools for ECA and EDA can help make this determination as you are able to quickly and accurately review documents to assess damage claims and potential liability issues. Accurately identifying the documents to be handled should be a routine part of the Rule 26(f) conference and subsequent discovery plan and thus give you a confident assessment of the economic value of the case very early on.

Second is the timing of any proposed settlement. After the 26(f) conference and attendant issues have been resolved, have you received enough information to evaluate any offer or make a proposal? Or do you need more time to continue discovery and make such an assessment? This is where eDiscovery and ECA can be especially helpful since the FRCP encourage discovery and assessment of ESI at an early stage which can help in this decision.

Third, you must ask whether negotiations will be fruitful. All negotiations and any ultimate settlement require some degree of compromise by both parties and a critical factor in that process may be knowing when is the right time to negotiate.

If you have a sense in your case that emotions are running high and no negotiations are possible it may better to proceed with your ECA and simply wait until the case evolves more before attempting a settlement.

Fourth is the cost of eDiscovery which is the classic proportionality analysis. The  process of eDiscovery, and thus eventually trial, will be expensive and if that expense is more than the value of the case, settlement to avoid the ultimate costs of litigation is likely a better choice.

Remember that the review portion of the eDiscovery process is typically 2/3 of the eventual total cost so your initial costs of preservation, collection, processing and ECA can give you a good ballpark figure for your total eDiscovery costs. That figure, in turn, can drive an assessment of whether settlement negotiations are in order.

Fifth if the outcome of the case is unpredictable, that is if your case appears to be a toss-up, you may be better off with a settlement. Essentially this is a risk assessment of the ultimate cost of expenses, court fees and attorney fees if you don’t win.

Finally, consider the hard to define value of business goodwill. Sometimes a reputation in the business community as being a reasonable person has a value that can’t be quantified. Your legal action may be justified, even necessary, but extensive publicity about ongoing litigation may outweigh those factors.  When parties understand that a reputation in the business community has an inherent value, settlement may be a good choice.

We’ll publish Part 4 – Conclusions – tomorrow.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices, Part Two

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Part one was published yesterday.  Here’s the second part.

Modern Litigation History

First, let’s consider the rise in class action and MDL litigation.  In 1962, U.S. Supreme Court Chief Justice Earl Warren appointed a special committee to improve the efficiency of the legal system. Alfred P. Murrah, CJ of the 10th Circuit, was named chairman and his committee members came up with then revolutionary solutions that are still used today, ideas such as combining depositions and discovery and combining lawsuits involving similar complicated claims into a single case.

By 1967, backlogs in the Federal court system had been cleared and the committee discovered large numbers of similar, complex cases were common across the U.S. court system. They recommended that a permanent panel be set up to handle these types of matters and Congress created the JPML in 1968.

Now, by some estimates, as many as one in every seven civil lawsuits filed in federal court are or will become part of a multi district litigation and these cases involve as many as 60% of all plaintiffs in Federal civil suits.  Since a high number of these cases settle, the number of trial associated with these litigants is also dramatically lessened.

Second, since the 1986 U.S. Supreme Court decisions in Matsushita Electrical Industrial Co. v. Zenith Radio Corp.Anderson v. Liberty Lobby, Inc., and Celotex Corp. v. Catrett, all of which encouraged the use of summary judgment, the increase in summary judgement motions has increased and seems clearly linked to the decrease in the number of trials.

Third, let’s consider that a high number of cases are now resolved by nonjudicial means, through alternative dispute resolution (ADR) methods such as compulsory mediation or arbitration clauses in contracts.

Fourth, changes in the FRCP which emphasize docket management have led many judges to become more active in management of the case before them.  FRCP 16 in particular was amended to require judges to monitor closely the management of cases (The Proposed FRCP Amendments Intended to Foster “Judicial Management”) and these changes have helped push early case resolution.

Finally, of course, the overall cost of litigation has risen dramatically. Bluntly put, the cost of making a wrong decision on whether to litigate wrong is getting more expensive. A seminal study of both federal and state court data in 2004 by DecisionSet found that making a wrong decision on litigating can cost a plaintiff about $43,000 and for defendants, who were less often wrong about going to trial, the cost could easily exceed $1 million.

We’ll publish Part 3 – eDiscovery Considerations – on Thursday.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Litigate or Settle? Info You Need to Make Case Decisions: eDiscovery Best Practices

Editor’s Note: Tom O’Connor is a nationally known consultant, speaker, and writer in the field of computerized litigation support systems.  He has also been a great addition to our webinar program, participating with me on several recent webinars.  Tom has also written several terrific informational overview series for CloudNine, including eDiscovery and the GDPR: Ready or Not, Here it Comes (which we covered as a webcast), Understanding eDiscovery in Criminal Cases (which we also covered as a webcast), ALSP – Not Just Your Daddy’s LPO, Why Is TAR Like a Bag of M&M’s? and eDiscovery for the Rest of Us (which we also covered as a webcast).  Now, Tom has written another terrific overview regarding information you need to make case decisions titled Litigate or Settle? Info You Need to Make Case Decisions that we’re happy to share on the eDiscovery Daily blog.  Enjoy! – Doug

Tom’s overview is split into four parts, so we’ll cover each part separately.  Here’s the first part.

Introduction

I have heard a great deal of anecdotal discussion lately about fewer and fewer cases going to trial, with an implied criticism that the cost of eDiscovery is somehow at the root of this phenomenon.  Indeed, the national decline in trials, both criminal and civil, has been noted in law journal articles, bar association studies and judicial opinions.

I decided to investigate both of these statements and was surprised by what I found. First, the decrease in cases going to trial is nothing new and in fact far pre-dates the eDiscovery changes to the FRCP.  Second, there are several clear reasons for this decline, all unrelated to any eDiscovery issues.

We’ll explore these reasons and other issues in this paper, as follows:

  1. Background
  2. Modern Litigation History
  3. eDiscovery Considerations
  4. Conclusions

Background

Each year the Administrative Office of the United States Courts (AOC) is required to provide a report of statistical information on the caseload of the federal courts for the 12-month period ending March 31.  According to AOC statistics, from 1962 through 1985, federal civil trials doubled, increasing every year. Trials then began declining in 1986 with a dramatic decline commencing in 1990. By 2006 there were only half the number of federal civil trials that there were in 1962 and since 2006, civil trials have continued to decline although at a much slower pace.

This phenomenon was so well known by the late 90’s that it was actually termed the “vanishing trial” by numerous commentators and led to many dire pronouncements about the future of the US legal system. Typical was a 2005 pronouncement by Chief Judge William G. Young of the U.S. District Court for the District of Massachusetts that “[t]he American jury system is dying. It is dying faster in the federal courts than in the state courts. It is dying faster on the civil side than on the criminal, but it is dying nonetheless.”  (What the Vanishing Trial Lawyer Means for In-House Counsel, and 5 Things They Can Do, Corporate Counsel, Oct. 14, 2016)

But the AOC report for 2017 also showed that the number of civil case filings was actually up 6%, a trend that has been present during the same period that the number of trials declined. Which clearly begs the question, if case filings continue to rise but trials continue to decline, what is going on in between those two events to cause the decline?

We’ll publish Part 2 – Modern Litigation History – tomorrow.

So, what do you think?  Does your firm have a formal process for deciding whether to litigate or settle a case?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.

Law Firm Partner Says Hourly Billing Model “Makes No Sense” with AI: eDiscovery Trends

Artificial intelligence (AI) is transforming the practice of law and we’ve covered the topic numerous times (with posts here, here and here, among others).  And, I’m not even including all of the posts about technology assisted review (TAR).  According to one law firm partner at a recent panel discussion, it could even (finally) spell the end of the billable hour.

In Bloomberg Law’s Big Law Business blog (Billable Hour ‘Makes No Sense’ in an AI World, written by Helen Gunnarsson), the author covered a panel discussion at a recent American Bar Association conference, which included Dennis Garcia, an assistant general counsel for Microsoft in Chicago, Kyle Doviken, a lawyer who works for Lex Machina in Austin and Anthony E. Davis, a partner with Hinshaw & Culbertson LLP in New York.  The panel was moderated by Bob Ambrogi, a Massachusetts lawyer and blogger (including the LawSites blog, which we’ve frequently referenced on this blog).

Davis showed the audience a slide quoting Andrew Ng, a computer scientist and professor at Stanford University: “If a typical person can do a mental task with less than one second of thought, we can probably automate it using AI either now or in the near future.” AI can “automate expertise,” Davis said. Because software marketed by information and technology companies is increasingly making it unnecessary to ask a lawyer for information regarding statutes, regulations, and requirements, “clients are not going to pay for time,” he said. Instead, he predicted, they will pay for a lawyer’s “judgment, empathy, creativity, adaptability, and emotional intelligence.”

Davis said AI will result in dramatic changes in law firms’ hiring and billing, among other things. The hourly billing model, he said, “makes no sense in a universe where what clients want is judgment.” Law firms should begin to concern themselves not with the degrees or law schools attended by candidates for employment but with whether they are “capable of developing judgment, have good emotional intelligence, and have a technology background so they can be useful” for long enough to make hiring them worthwhile, he said.

The panelists provided examples of how the use of artificial intelligence can enhance lawyers’ efficiency in areas such as legal research, document review in eDiscovery, drafting and evaluating contracts, evaluating lateral hires and even assessing propensities of federal judges.  Doviken indicated that a partner at a large firm had a “hunch” that a certain judge’s rulings favored alumni of the judge’s law school. After reviewing three years’ worth of data, the firm concluded the hunch was valid, assigned a graduate of that law school to a matter pending before that judge, and started winning its motions.

“The next generation of lawyers is going to have to understand how AI works” as part of the duty of competence, said Davis.  Want one example of how AI works that you are probably already using?  Click here.

So, what do you think?  Do you think that AI could spell the end of the billable hour?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Sponsor: This blog is sponsored by CloudNine, which is a data and legal discovery technology company with proven expertise in simplifying and automating the discovery of data for audits, investigations, and litigation. Used by legal and business customers worldwide including more than 50 of the top 250 Am Law firms and many of the world’s leading corporations, CloudNine’s eDiscovery automation software and services help customers gain insight and intelligence on electronic data.

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.