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Electronic Discovery

Why Is TAR Like a Bag of M&M’s?, Part Four: 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) and ALSP – Not Just Your Daddy’s LPO.  Now, Tom has written another terrific overview regarding Technology Assisted Review titled Why Is TAR Like a Bag of M&M’s? 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.  The first part was covered last Tuesday, the second part was covered last Thursday and the third part was covered this past Tuesday.  Here’s the final part, part four.

Justification for Using TAR

So where does this leave us? The idea behind TAR – that technology can help improve the eDiscovery process – is a valuable goal. But figuring out what pieces of technology to apply at what point in the workflow is not so easy, especially when the experts disagree as to the best methodology.

Is there a standard, either statutory or in case law to help us with this determination?  Unfortunately, no. As Judge Peck noted on page 5 of the Hyles case mentioned above, “…the standard is not perfection, or using the “best” tool, but whether the search results are reasonable and proportional.”

FRCP 1 is even more specific.

These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.  (emphasis added)

The Court in any given matter decides if the process being used is just.  And although we have seen ample evidence that computers are faster than humans, speed may not always equate to accuracy. I’ll leave aside the issue of accuracy for another day since two of the most interesting case studies, the EDI/Oracle study and the most recent Lex Geek “study” in which a human SME scored exactly the same number of accurate retrievals as the computer system.

I am most interested in pointing out that few if any studies or case law opinions address the issue of inexpensive.  To his credit, Judge Peck did note in footnote 2 on page 3 of the Hyles opinion that “…some vendor pricing models charge more for TAR than for keywords.” but went on to note that typically those costs are offset by review time savings.  With all due respect to Judge Peck, to whose opinion I give great credence, I am not sure that is necessarily the case.

Most case studies I have seen emphasize speed or accuracy and don’t even mention cost. Yet the increased emphasis on proportionality in eDiscovery matters makes this third requirement more important than ever. Maura Grossman does provide for this concern in her Broiler Chicken protocol but only to the extent that a concerned party should bring any issues to the Special Master.

The proportionality issue is an important one. Principle 4 of the Sedona Conference Commentary on Proportionality in Electronic Discovery states that “The application of proportionality should be based on information rather than speculation.” Absent specific statistics regarding TAR costs, it seems we are all too often engaging in speculation about the true cost a specific technology.

I am mindful of the decision in the case of In Re State Farm Lloyds in March of 2017 (covered by eDiscovery Daily here), in which the Texas Supreme Court, deciding a matter involving the form of production and noting it’s parity with the Federal Rules, remarked that one party made an assertion of an “… extraordinary and burdensome undertaking … without quantifying the time or expense involved.”   Meaningful case studies and their statistics about the actual costs of various technologies would go a long way towards resolving these sort of disputes and fulfilling the requirement of FRCP 1.

Conclusions

Although the use of TAR has been accepted in the courts for several years, there is still a great deal of confusion as to what TAR actually is. As a result, many lawyers don’t use TAR at all.

In addition, the lack of definitions makes pricing problematic. This means that the several of the Federal Rules of Civil Procedure are difficult if not impossible to implement including FRCP 1 and FRCP 26(b)(1).

It is essential for the proper use of technology to define what TAR means and to determine not only the different forms of TAR but the costs of using each of them.  Court approval of technology such as predictive coding, clustering and even AI all depend on clear concise information and cost analysis.  Only then will technology usage be effective as well as just, speedy and inexpensive.

So, what do you think?  How would you define TAR?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Mars, Incorporated and its Affiliates.

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.

CLOUD Act Renders Supreme Court Decision in the Microsoft Case Moot: eDiscovery News

The Supreme Court heard arguments on February 27th over Microsoft’s ongoing data privacy case involving email stored in Microsoft datacenter in Ireland.  Supposedly, according to reports from those attending, the justices didn’t seem swayed by Microsoft’s claims that data stored overseas should not be accessible to government prosecutors.  However, Congress has since passed the CLOUD (Clarifying Lawful Overseas Use of Data) Act. Parties on all sides of the case expected the passage of the CLOUD Act to render the Microsoft case moot.  And, they were right.

Yesterday, in an unsigned three-page opinion, the Supreme Court justices threw out a ruling by the U.S. Court of Appeals for the 2nd Circuit, explaining that the case had become moot.

On March 23, Congress passed – and President Donald Trump signed – legislation that directly addressed the legal issue before the court in the Microsoft case. The CLOUD Act contains a provision that requires email service providers to disclose emails within their “possession, custody, or control,” even when those emails are located outside the United States. Once the CLOUD Act was in effect, the federal government went back to court and got a new warrant, which has replaced the warrant originally served on Microsoft back in 2013.  According to ZDNet, Microsoft officials said they are reviewing the new DOJ warrant before deciding how to proceed.

Microsoft officials repeatedly have said they were in favor of legislation, not legal action, in settling these kinds of matters. Though it seems contradictory, Microsoft actually backed The CLOUD Act, which stipulates that cloud providers comply with court orders for data regardless of whether the information is located in the U.S. or not.

Microsoft released the following statement from its President and Chief Legal Officer Brad Smith yesterday regarding the Supreme Court’s move:

“We welcome the Supreme Court’s ruling ending our case in light of the CLOUD Act being signed into to law. Our goal has always been a new law and international agreements with strong privacy protections that govern how law enforcement gathers digital evidence across borders. As the governments of the UK and Australia have recognized, the CLOUD Act encourages these types of agreements, and we urge the US government to move quickly to negotiate them.”

In light of all these facts, the court concluded, there is no longer a “live dispute” between the United States and Microsoft on the legal question that the justices had agreed to review. The court therefore invalidated the 2nd Circuit’s ruling and sent the case back to the court of appeals with instructions to vacate the district court’s rulings against Microsoft and to direct the district court to dismiss the case.

So, what do you think?  Does the CLOUD Act end the disputes over data stored by internet providers overseas?  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.

Why Is TAR Like a Bag of M&M’s?, Part Three: 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) and ALSP – Not Just Your Daddy’s LPO.  Now, Tom has written another terrific overview regarding Technology Assisted Review titled Why Is TAR Like a Bag of M&M’s? 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.  The first part was covered last Tuesday and the second part was covered last Thursday.  Here’s part three.

Uses for TAR and When to Use or Not Use It

Before you think about using more advanced technology, start with the basic tools early on: dedupe, de-nist, cull by dates and sample by custodians. Perhaps even keyword searches if your case expert fully understands case issues and is consistent in his or her application of that understanding.

When you have all (or at least most) of your data at the outset, some examples are:

  • Review-for-production with very large data sets
  • First pass review for Responsive/Not Responsive
  • First pass review for Privileged/Not Privileged
  • Deposition preparation
  • Working with an expert witness

Then when you are ready to move on to more advanced analytics, get an expert to assist you who has legal experience and can explain the procedure to you, your opponent and the Court in simple English.

Advanced tools may also be helpful when all of the data is not yet collected, but you need to:

  • Identify and organize relevant data in large datasets
  • When the objective is more than just identifying relevance or responsiveness
  • If you need to locate a range of issues
  • If you have a very short deadline for a motion or hearing

There are several operational cautions to keep in mind however.

  1. TAR isn’t new: it’s actually the product of incremental improvements over the last 15 years
  2. TAR isn’t one tool: just as there is no one definition of the tools, there is likewise no single approach to how they’re employed
  3. TAR tools do not “understand” or “read” documents. They work off of numbers, not words

And when do you NOT want to use TAR? Here is a good example.

This is a slide that Craig Ball uses in his presentation on TAR and eDiscovery:

Image Copyright © Craig D. Ball, P.C.

The point is clear. With large data sets that require little or no human assessment, TAR … and here we are specifically talking about predictive coding …. is your best choice. But for the close calls, you need a human expert.

How does this work with actual data? The graphic below from the Open Source Connections blog shows a search result using a TAR tool in a price fixing case involving wholesale grocery sales.  The query was to find and cluster all red fruits.

Image Copyright © Open Source Connections blog

What do see from this graphic?  The immediate point is that the bell pepper is red, but it is a vegetable not a fruit. What I pointed out to the client however was there were no grapes in the results.  A multi modal approach with human intervention could have avoided both these errors.

We’ll publish Part 4 – Justification for Using TAR and Conclusions – on Thursday.

So, what do you think?  How would you define TAR?  As always, please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Mars, Incorporated and its Affiliates.

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.

Getting Off the Sidelines and into the Game using Technology Assisted Review: eDiscovery Webcasts

The use of Technology Assisted Review (TAR) has been accepted in the courts for several years, but most lawyers still don’t use it and many still don’t know what it is or how it works. Why not?  We will discuss this and other questions in a webcast next week.

On Wednesday, April 25 at noon CST (1:00pm EST, 10:00am PST), CloudNine will conduct the webcast Getting Off the Sidelines and into the Game using Technology Assisted Review. In this one-hour webcast that’s CLE-approved in selected states, will discuss what TAR really is, when it may be appropriate to consider for your case, what challenges can impact the use of TAR and how to get started. Topics include:

  • Understanding the Goals for Retrieving Responsive ESI
  • Defining the Terminology of TAR
  • Different Forms of TAR and How They Are Used
  • Acceptance of Predictive Coding by the Courts
  • How Big Does Your Case Need to Be to use Predictive Coding?
  • Considerations for Using Predictive Coding
  • Challenges to an Effective Predictive Coding Process
  • Confirming a Successful Result with Predictive Coding
  • How to Get Started with Your First Case using Predictive Coding
  • Resources for More Information

Once again, I’ll be presenting the webcast, along with Tom O’Connor, who recently wrote an article about TAR that we are currently covering on this blog (parts one and two were published last week, the remaining two parts will be published this week).  To register for it, click here.  Even if you can’t make it, go ahead and register to get a link to the slides and to the recording of the webcast (if you want to check it out later).  If you want to learn about TAR, what it is and how to get started, this is the webcast for you!

So, what do you think?  Do you use TAR to assist in review in your cases?  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.

You May Be a User of Predictive Coding Technology and Not Realize It: eDiscovery Trends

At the Houston ACEDS luncheon/TAR panel last week, we asked a few questions of the audience to gauge their understanding and experience with Technology Assisted Review (TAR).  Some of the questions (like “have you used TAR on a case?”) were obvious questions to ask.  Others might have not been so obvious.

Like, “do you watch movies and TV shows on Netflix or Amazon Prime?”  Or, “do you listen to music on Pandora or Spotify”?

So, why would we ask a question like that on a TAR panel?

Because those sites are examples of uses of artificial intelligence and supervised machine learning.

But first, this week’s eDiscovery Tech Tip of the Week is about Boolean Searching.  When performing searches, the ability to combine multiple criteria into a single search to be performed is key to help achieve a proper balance of recall and precision in that search.  Using OR operators between search terms helps expand recall by retrieving documents that meet ANY of the criteria; while using AND or AND NOT operators between search terms help improve precision by only retrieving documents that are responsive if they include all terms (AND) or exclude certain terms (AND NOT).

Grouping of those parameters properly is important as well.  My first name is Dozier, so a search for my name could be represented as Doug or Douglas or Dozier and Austin or it could be represented as (Doug or Douglas or Dozier) and Austin.  One of them is right.  Guess which one!  Regardless, boolean searching is an important part of efficient search and retrieval of documents to meet discovery requirements.

To see an example of how Boolean Searching is conducted using our CloudNine platform, click here (requires BrightTalk account, which is free).

Anyway, back to the topic of the day.  Let’s take Pandora, for example.  I was born in the 60’s – yes, I look GREAT for my age, :o) – and so I’m a fan of classic rock.  Pandora is a site where you can set up “stations” of your favorite artists.  If you’re a fan of classic rock and you’re born in the 60’s, you probably love an artist like Jimi Hendrix.  Right?

Well, I do and I have a Pandora account, so I set up a Jimi Hendrix “station”.  But, Pandora doesn’t just play Jimi Hendrix on that station, it plays other artists and songs it thinks I might like that are in a similar genre.  Artists like Stevie Ray Vaughan (The Sky is Crying), Led Zeppelin (Kashmir), The Doors (Peace Frog) and Ten Years After (I’d Love to Change the World), which is the example you see above.  For each song, you can listen to it, skip it, or give it a “thumbs up” or “thumbs down” (for the record, I wouldn’t give any of the above songs a “thumbs down”).  If you give a song a “thumbs up”, you’re more likely to hear the song again and if you give the song a “thumbs down”, you’re less likely to hear it again (at least in theory).

Does something sound familiar about that?

You’re training the system.  Pandora is using the feedback you give it to (hopefully) deliver more songs that you like and less of the songs you don’t like to improve your listening experience.  One nice thing about it is that you get to listen to songs or artists you may not have heard before and learn to enjoy them as well (that’s how I got to be a fan of The Black Keys, for example).

If you watch a show or movie on Netflix and you log in sometime afterward, Netflix will suggest shows for you to watch, based on what you’ve viewed previously (especially if you rate what you watched highly).

That’s what supervised machine learning is and what a predictive coding algorithm does.  “Thumbs up” is the same as marking a document responsive, “thumbs down” is the same as marking a document non-responsive.  The more documents (or songs or movies) you classify, the more likely you’re going to receive relevant and useful documents (or songs or movies) going forward.

When it comes to teaching the legal community about predictive coding, “I’d love to save the world, but I don’t know what to do”.  Maybe, I can start by teaching people about Pandora!  So, you say you’ve never used a predictive coding algorithm before?  Maybe you have, after all.  :o)

Speaking of predictive coding, is that the same as TAR or not?  If you want to learn more about what TAR is and what it could also be, check out our webcast Getting Off the Sidelines and into the Game using Technology Assisted Review on Wednesday, April 25.  Tom O’Connor and I will discuss a lot of topics related to the use of TAR, including what TAR is (or what people think it is), considerations and challenges to using TAR and how to get started using it.  To register, click here!

So, what do you think?  Have you used a predictive coding algorithm before?  Has your answer changed after reading this post?  :o)  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.

Why Is TAR Like a Bag of M&M’s?, Part Two: 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) and ALSP – Not Just Your Daddy’s LPO.  Now, Tom has written another terrific overview regarding Technology Assisted Review titled Why Is TAR Like a Bag of M&M’s? 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.  The first part was covered on Tuesday.  Here’s part two.

History and Evolution of Defining TAR

Most people would begin the discussion by agreeing with this framing statement made by Maura Grossman and Gordon Cormack in their seminal article, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, (XVII RICH. J.L. & TECH. 11 (2011):

Overall, the myth that exhaustive manual review is the most effective—and therefore, the most defensible—approach to document review is strongly refuted. Technology-assisted review can (and does) yield more accurate results than exhaustive manual review, with much lower effort.

A technology-assisted review process may involve, in whole or in part, the use of one or more approaches including, but not limited to, keyword search, Boolean search, conceptual search, clustering, machine learning, relevance ranking, and sampling.

So, TAR began as a process and in the early stage of the discussion, it was common to refer to various TAR tools under the heading “analytics” as illustrated by the graphic below from Relativity.

Copyright © Relativity

That general heading was often divided into two main categories

Structured Analytics

  • Email threading
  • Near duplicate detection
  • Language detection

Conceptual Analytics

  • Keyword expansion
  • Conceptual clustering
  • Categorization
  • Predictive Coding

That definition of Predictive Coding as part of the TAR process held for quite some time. In fact, the current EDRM definition of Predictive Coding still refers to it as:

An industry-specific term generally used to describe a Technology-Assisted Review process involving the use of a Machine Learning Algorithm to distinguish Relevant from Non-Relevant Documents, based on a Subject Matter Expert’s Coding of a Training Set of Documents

But before long, the definition began to erode and TAR started to become synonymous with Predictive Coding. Why?  For several reasons I believe.

  1. The Grossman-Cormack glossary of 2013 used the phrase Coding” to define both TAR and PC and I think various parties then conflated the two. (See No. 2 below)

  1. Continued use of the terms interchangeably. See EG, Ralph Losey’s TARCourse,” where the very beginning of the first chapter states, “We also added a new class on the historical background of the development of predictive coding.”  (which is, by the way, an excellent read).
  2. Any discussion of TAR involves selecting documents using algorithms and most attorneys react to math the way the Wicked Witch of the West reacted to water.

Again, Ralph Losey provides a good example.  (I’m not trying to pick on Ralph, he is just such a prolific writer that his examples are everywhere…and deservedly so). He refers to gain curves, x-axis vs y-axis, HorvitsThompson estimators, recall rates, prevalence ranges and my personal favorite “word-based tf-idf tokenization strategy.”

“Danger. Danger. Warning. Will Robinson.”

  1. Marketing: the simple fact is that some vendors sell predictive coding tools. Why talk about other TAR tools when you don’t make them? Easier to call your tool TAR and leave it at that.

The problem became so acute that by 2015, according to a 2016 ACEDS News Article, Maura Grossman and Gordon Cormack trademarked the terms “Continuous Active Learning” and “CAL”, claiming those terms’ first commercial use on April 11, 2013 and January 15, 2014. In an ACEDS interview earlier in the year, Maura stated that “The primary purpose of our patents is defensive; that is, if we don’t patent our work, someone else will, and that could inhibit us from being able to use it. Similarly, if we don’t protect the marks ‘Continuous Active Learning’ and ‘CAL’ from being diluted or misused, they may go the same route as technology-assisted review and TAR.”

So then, what exactly is TAR? Everyone agrees that manual review is inefficient, but nobody can agree on what software the lawyers should use and how. I still prefer to go back to Maura and Gordon’s original definition. We’re talking about a process, not a product.

TAR isn’t a piece of software. It’s a process that can include many different steps, several pieces of software, and many decisions by the litigation team. Ralph calls it the multi-modal approach: a combination of people and computers to get the best result.

In short, analytics are the individual tools. TAR is the process you use to combine the tools you select.  The next consideration, then, is how to make that selection.

We’ll publish Part 3 – Uses for TAR and When to Use or Not Use It – next Tuesday.

So, what do you think?  How would you define TAR?  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Mars, Incorporated and its Affiliates.

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.

Chris Dale of the eDisclosure Information Project: eDiscovery Trends 2018

This is the eleventh (and final) of the 2018 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year (and some afterward) to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Chris Dale.  Chris is Editor of the eDisclosure Information Project.  Chris qualified as an English solicitor in 1980. He was a litigation partner in London and then a litigation software developer and litigation support consultant before turning to commentary on electronic disclosure / discovery. He runs the e-Disclosure Information Project which disseminates information about the court rules, the problems, and the technology to lawyers and their clients, to judges, and to suppliers. He was a member of Senior Master Whitaker’s Working Party which drafted Practice Direction 31B and the Electronic Documents Questionnaire. Chris is also a well-known speaker and commentator in the UK, the US and other common law jurisdictions.

{I spoke to Chris during LTNY and this is a rough transcript of our discussion}

Everybody over here in the US is talking about the General Data Protection Regulation (GDPR), what it will mean to American businesses and especially the potential of large fines for lack of compliance.  What are people saying about it in Europe?  Is this as big a deal as everyone is making it out to be?

I’m plotting with somebody to have a conference in London before the implementation date, at which we will not mention the GDPR in the marketing profile.  Whether we’ll get that through the marketing department or the education department I have yet to find out, but there’s no doubt that GDPR is driving a lot of attention, often for the wrong reasons.

You say for the wrong reasons? Why do you say that?

A lot of people are talking about the 4% fines as if that was the only driver which matters. There are lots of people who are talking about “citizens” but have not responded to my challenge find the word ”citizens” anywhere in the GDPR. There’s a lot of pig ignorance about precisely what it says and what its terminology is, let alone what its effect is likely to be. That’s quieting down and the shouters are beginning to shout a bit less about 4% fines. Of course, the fines have to be mentioned, because they are part of the bottom line, and companies like Facebook may well face the very big fines. As a motive for doing anything about GDPR, they should not be the most compelling one for most companies.  It would be good to see people taking a more rounded approach to what the implications are. I interviewed someone this morning who is very good, very knowledgeable about it and yet he (to my surprise) mentioned the 4% fine.  But when we discussed the fine, it was clear that he didn’t mean everybody is at a risk from that. It would be good to see people produce a business case for dealing with GDPR that doesn’t refer either to the 4% fine or to “citizens”, because there’s a lot of nonsense going on about it at the moment. There are an awful lot of people who act as experts on it, but whose first paragraph about it betrays the fact that they haven’t got a clue.  I saw an article promoting a service just recently and the first paragraph had a gross error in it.

So, I guess it’s an understatement to say there’s a lot of misconceptions about the GDPR?

Yes. One of the results of that, to some extent anyway, is that companies just throw their hands up in horror and say, “Well, I can’t comply by the due date, so I’ll just hide and pretend it’s going to go away.” That’s the result of hype and what happens when providers raise the stakes. We saw it in Zubulake and we saw it with the federal changes way back. People are thinking, “Well I can’t comply with it anyway, so why bother?” And that is not exactly the right attitude.

There are people who talk about the 72-hour deadline for breach notification as if that meant you have to do everything, produce every last bit of information to a regulator and possibly to the people affected within the 72 hours.  All this hype tends to make a lot of organizations say, “I can’t, I know I don’t comply with that anyway, I’ll just keep my head down, hope they hit somebody else.” Whereas there needs to be a more moderated approach to what needs to be done and what the implications are of not doing it, and a more positive look at what you gain from compliance.

My favorite quotation came from a chap called Patrick Burke whom you may know. He was in private practice advising on privacy and data protection, and specifically on the GDPR, and I asked him, “What’s your clients’ reactions, are they in fear of fines?” He said, “No, they just want to keep doing business.” Which is a really good line. Very quickly, the clients of the organizations who haven’t complied are probably going to start putting it into their RFP. They’ll be asking not just, “Have you complied?” but ”Can you indicate what you have done to be consistent with compliance with GDPR?” Those who have to say, “Oh, I don’t know what you’re talking about,” which I’m afraid includes quite a lot, will start losing business.  Possibly the companies who are asking that themselves won’t be compliant or know what it means, but it’ll become one of those tick box items like so many other things and the inability to give a satisfactory answer will lose business.

If you look at one of the companies in the UK that’s been fined under the present regime, they were fined 400,000 pounds, which sounds a lot of money until you look at what else they lost – £80 million in direct and indirect costs. It is said that they lost more than 6% of their market share, so you could multiply that £400,000 fine by roughly ten times under the new regime and you’re still not scratching the surface of the losses they’ve suffered overall, because they come across as the sort of company that doesn’t look after its customers’ data properly.

The conventional marketing of, “I know GDPR and I can help you through it,” doesn’t scratch the surface particularly if they start using terminology that doesn’t actually exist in it.  But you’re not offering expert services in guidance through the GDPR, you’re offering the ability to do specific things like to identify personal data and believing it is somebody else’s problem perhaps to decide what personal data is and what the risk profile is. Stick resolutely to the provision of services to meet whatever requirements are offered are sought, such as the ability to identify personal data and the ability to adapt, to show what data you’ve got in case you need to do so.

Perhaps that doesn’t matter as long as one gets business from it.  There’s certainly a lot of work coming out of it. Maybe we are at last finding the ROI for information governance that was missing on the first round through IG. Maybe people will begin to realize that if they get rid of their “crap”, they have less of a problem. That’s valuable.  The end result is less crap, or at least a better handle on their crap through data maps and things like that.  And knowing where it is from the moment of its creation and what in it might be offensive – knowing what ought to be deleted.

Or at least confront the decision. “Yes, I ought to delete that because the EU rules say that once it’s no longer serving the purpose for which it was collected it ought to be deleted.” Weighing that against, “Yes, but then I might be in trouble with a US regulator or court.”  It’s about making the informed decision that you’re keeping it or not keeping it, depending on which of those risks you see as the most important.  We will see gradually US courts acknowledging that there’s an EU requirement to delete data – if it contains personal information that’s no longer required for the purpose for which it was collected –and to acknowledge that that is a reason, an excuse if you like, for its non-availability.

That will take three to five years. For a period you’ll have judges who either don’t give a damn what everybody outside the US says or are too uninformed to understand what all this means with arguments put in front of them by lawyers who neither care nor understand what it all means.  But you’ll reach a point where I think the US courts will acknowledge that there are problems for those who keep EU data at the rate it that has been done most times in the EU. All that will take time and I hope there’ll be some examples. There’ll be some people who get some serious difficulties because of failure to comply. We don’t wish bad things for those people, but until we start seeing that we don’t actually know what target we’re aiming for. Regardless how well we might think we understand the statutes until we start seeing how regulators enforce them, we won’t know what to expect.  Of course, whether we get consistency between EU regulators (as is the hope) or whether in fact they all end up with different shades of interpretation will make a difference. It will take time and very interesting to see. That problem makes it sound even more daunting than it was.

In addition to GDPR, the Supreme Court decision in the Microsoft Ireland case will also have an impact of privacy rights for data subpoenaed by US law enforcement agencies.  What do you think will happen there and what do you think will be the impact?

I think it’s likely that Judge Francis’ original opinion is upheld by the Supreme Court. I think it will be upheld because the politics of it is not Supreme Court’s concern. It will be interesting to see what will happen when the Supreme Court says, “Yes, it’s absolutely fine for US agencies to dip their hands into data stores all over the world even if they don’t know that it’s a US citizen.” That’s a perfectly possible outcome.  What are you going to do then? What’s China going to do? There’s all these sort of political things, which as I say are not strictly the concern of the Supreme Court. What’s the backlash going to be?  Nobody knows.

Regardless of what the decision ultimately is, the CLOUD Act currently before Congress (to amend the Stored Communications Act to allow US federal law enforcement to compel U.S.-based service providers via warrant or subpoena to provide requested data stored on servers regardless of whether they are located within the U.S. or in foreign countries) could make the Supreme Court decision moot.  {Editor’s Note: The CLOUD Act was signed into law as part of the Omnibus Bill in March.}

What would you like our readers to know about things you’re working on?

We have some new civil discovery rules pending in England and Wales, and we have had some cases worthy of comment recently. The main thing is to keep writing – I’m getting 60 more page views per day this year than last year (that is, nearly 22,000 extra page views a year) which suggests a growing interest in this subject.

Part of that, perhaps, is down to the videos which we do and I am keen to make more use of this medium to get messages across, whether about the rules of England and Wales, the GDPR, or the interesting developments in discovery US and worldwide. They are very time-consuming to do properly but are well worth it.

Thanks, Chris, for participating in the interview!

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.

Why Is TAR Like a Bag of M&M’s?: 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) and ALSP – Not Just Your Daddy’s LPO.  Now, Tom has written another terrific overview regarding Technology Assisted Review titled Why Is TAR Like a Bag of M&M’s? 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

Over the past year I have asked this question several different ways in blogs and webinars about technology assisted review (TAR). Why is TAR like ice cream? Think Baskin Robbins? Why is TAR like golf? Think an almost incomprehensible set of rules and explanations. Why is TAR like baseball, basketball or football? Think never ending arguments about the best team ever.

And now my latest analogy. Why is TAR like a bag of M&M’s?  Because there are multiple colors with sometimes a new one thrown in and sometimes they have peanuts inside but sometimes they have chocolate.  And every now and then you get a bag of Reese’s Pieces and think to yourself, “ hmmmm, this is actually better than M&M’s. “

Two recent cases spurred this new rumination on TAR. First came the decision in Winfield, et al. v. City of New York, No. 15-CV-05236 (LTS) (KHP) (S.D.N.Y. Nov. 27, 2017) (covered by eDiscovery Daily here), where Magistrate Judge Parker ordered the parties to meet and confer on any disputes with regards to a TAR process “with the understanding that reasonableness and proportionality, not perfection and scorched-earth, must be their guiding principles.”  More recently is the wonderfully crafted validation protocol (covered by ACEDS here) from Special Master Maura Grossman in the In Re Broiler Chicken Antitrust Litigation, (Jan. 3, 2018) matter currently pending in the Northern District of Illinois.

Both of these cases harkened back to Aurora Cooperative Elevator Company v. Aventine Renewable Energy or Independent Living Center of Southern California v. City of Los Angeles, a 2015 where the court ordered the use of predictive coding after extensive discovery squabbles and the 2016 decision in Hyles v. New York City (covered by eDiscovery Daily here) where by Judge Peck, in declining to order the parties to use TAR, used the phrase on page 1 of his Order, “TAR (technology assisted review, aka predictive coding) … “.

Which brings me to my main point of discussion. Before we can decide on whether or not to use TAR we have to decide what TAR is.  This discussion will focus on the following topics:

  1. History and Evolution of Defining TAR
  2. Uses for TAR and When to Use or Not Use It
  3. Justification for Using TAR
  4. Conclusions

We’ll publish Part 2 – History and Evolution of Defining TAR – on Thursday.

So, what do you think?  How would you define TAR?  And, as always, please share any comments you might have or if you’d like to know more about a particular topic.

Image Copyright © Mars, Incorporated and its Affiliates.

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.

Brad Jenkins of CloudNine: eDiscovery Trends 2018

This is the tenth of the 2018 Legaltech New York (LTNY) Thought Leader Interview series.  eDiscovery Daily interviewed several thought leaders at LTNY this year (and some afterward) to get their observations regarding trends at the show and generally within the eDiscovery industry.

Today’s thought leader is Brad Jenkins.  Brad is CEO of CloudNine™.  Brad has over 20 years of experience as an entrepreneur, as well as 18 years leading customer focused companies in the litigation technology arena. Brad consults clients on implementing best practices in litigation document management and the impact of technology on managing discovery. Brad is very involved in eDiscovery educational efforts and currently serves as the President of the Houston ACEDS Chapter.  He’s also my boss!  :o)

What were your impressions of LTNY this year?

Personally, I was in meetings with clients, partners and analysts during most of the conference, so I don’t have a lot of observations to share.  It seemed as though a lot of people with whom I was meeting didn’t spend a lot of time at the conference either.  That seems to have become a trend – a lot of people come to New York for LTNY each year (from a lot of corporations, law firms and providers), but it seems that more and more of them are using that opportunity to set up meetings because LTNY provides that opportunity to meet in person.  More attendees seem to actually be spending their time at meetings at hotels near the Hilton instead of actually at the show in the Hilton.

From a CloudNine perspective, we had a booth in the exhibit hall and, from what I understand (and also observed when I stopped by the booth), traffic was generally good.  Though I’ve heard from others overall that traffic in the exhibit hall was down again this year and there were less providers again this year.  CloudNine also co-hosted the “Drinks with Doug and Mary” happy hour at Ruth’s Chris Steak house on Wednesday, along with ACEDS and our partner Compliance Discovery.  That was a huge success, as we had an overflow of people register for the event and a full house during the happy hour.  One of the best things about Legaltech is the opportunity to network with others in the industry and it’s still one of the best conferences for that.

If you were “king of LTNY” for a year, what changes would you make?

I would consider moving the conference to a larger venue – one that provided a large number of meeting rooms for the meetings that currently take place near the show at nearby hotels, so those meetings could actually be held right there at the show.  Assuming they charged a reasonable rate for the meeting rooms, Legaltech could then keep more of the attendees plugged into the show itself and those people could attend sessions and check out the providers in the exhibit hall much more easily.

CloudNine just recently acquired the eDiscovery product lines (Concordance, LAW PreDiscovery and Early Data Analyzer) from LexisNexis.  Why did CloudNine decide to acquire these products and what does CloudNine intend to do with them?

For CloudNine, the opportunity through this acquisition to offer a hybrid of both on-premise and off-premise solutions simply made sense to us as a way to support customer needs regardless of their eDiscovery task, security, and cost requirements.  This purchase enables us to immediately begin serving the on-premise segment with a portfolio of proven and performing products and it provides us the technology that will enable us to deliver fully integrated and automated solutions that can address off-premise requirements, on-premise requirements and combined on/off-premise (hybrid) requirements through a single provider.

CloudNine has been a user of the purchased product line offerings for more than a decade, so we understand what they can do today and the potential of what they can do in the future.  As an example, our production team uses LAW daily to support our clients’ processing and production needs.  Just as the daily use of our CloudNine SaaS platform enables us to uniquely understand how our customers use the product – because we are using it to accomplish the same tasks they are – our regular use of the acquired products provides that same level of unique understanding of how they are used as well.

As for our plans for the products, CloudNine plans to invest significant resources in the support, development, enhancement, and availability of these products.  They will be offered as solutions available as part of the CloudNine portfolio of offerings.  Our acquisition of these products includes the current development and support teams, so the customers using these products will be working with the same people that have been supporting their use of the products today, helping to ensure a smooth transition at the outset.  Our short-term plans include technology integration of our existing cloud offerings and our new on-premise offerings to support client needs by developing connectors using our Outpost technology to automate and accelerate data transfer.  CloudNine partners will also benefit from the purchase as it will give them additional access to proven eDiscovery offerings that will see that significant investment in development and support that I mentioned.

Our ability to acquire and invest in these products is facilitated by our new capital partners, Peak Rock Capital.  Peak Rock’s principals have extensive experience working with businesses in the technology and software industries and they have considerable experience with these types of transactions, so they will be integral to our plans to support and enhance the products.

We know that customers of these products likely have questions (as do others), so we prepared an FAQ document to help address as many of those common questions as possible.  We have already begun to reach out to existing customers for their feedback on the products and encourage them to reach out to us, as well, to enable us to understand what features and capabilities they would like to see added.  If you’re a recent or current customer of these products, we want to hear from you!

What would you like our readers to know about things you’re working on?

Isn’t that enough? {laughs}  Actually, one personal item to note is my involvement in starting a new chapter of the Association of Certified E-Discovery Specialists (ACEDS) in Houston.  I’m the current President of the Houston chapter and our chapter has been in existence for several months now.  The Houston ACEDS chapter just conducted a panel discussion earlier this month on Technology Assisted Review that was very well received and we look forward to future ACEDS events in Houston.

As for CloudNine, we’re obviously very excited about not only our recent acquisition, but about accomplishments at the company as a whole.  Earlier this year, we announced a new preservation and collection capability for CloudNine and, in just the past few days, CloudNine was highlighted in G2 Crowd’s Spring 2018 Grid Report for eDiscovery as one of the best eDiscovery software solutions based on customer satisfaction.  We’re very proud of the highly positive feedback we get from customers for our CloudNine platform and look forward extending that to our new product offerings.  We also continue to emphasize eDiscovery education through this blog and through our monthly webcasts on hot topics related to eDiscovery, information governance and cybersecurity.  All of these initiatives continue to further our mission of simplifying the discovery process for our customers and for others in the legal industry.  The more things change, the more our mission of simplifying discovery remains the same.

Thanks, Brad, for participating in the interview!

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.