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eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever?
 

Many of you have Android phones.  I do, as well.  As you may know, Android is Google’s operating system for phones and Android phones have become extraordinarily popular.

However, as noted in this Computerworld UK article, it may be a failure in searching that ironically may cost Google big time in its litigation with Oracle over the Android operating system.

Google is currently involved in a lawsuit with Oracle over license fees associated with Java.  Oracle acquired Java when it purchased Sun Microsystems and many companies license Java.  Java forms a critical part of Google’s Android operating system and Google has leveraged free Android to drive mobile phone users to their ecosystem and extremely profitable searches and advertising.  Android has been so successful for Google that a loss to Oracle could result in billions of dollars in damages.

To cull down a typically large ESI population, Google turned to search technology to help identify potentially responsive and potentially privileged files.  Unfortunately for Google, a key email was produced that could prove damaging to their case.  The email was written by Google engineer Tim Lindholm a few weeks before Oracle filed suit against Google. With Oracle having threatened to sue Google for billions of dollars, Lindholm was instructed by Google executives to identify alternatives to Java for use in Android, presumably to strengthen their negotiating position.

"What we've actually been asked to do (by Larry and Sergey) is to investigate what technical alternatives exist to Java for Android and Chrome," the email reads in part, referring to Google co-founders Larry Page and Sergey Brin. "We've been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need."

Lindholm added the words “Attorney Work Product” and sent the email to Andy Rubin (Google’s top Android executive) and Google in-house attorney Ben Lee.  Unfortunately, Lindholm’s computer saved nine drafts of the email while he was writing it – before he added the words and addressed the email to Lee.  Because Lee's name and the words "attorney work product" weren't on the earlier drafts, they weren't picked up by the eDiscovery software as privileged documents, and they were sent off to Oracle's lawyers.

Oracle's lawyers read from the email at two hearings over the summer and Judge William Alsup of the U.S. District Court in Oakland, California, indicated to Google's lawyers that it might suggest willful infringement of Oracle's patents.  Google filed a motion to "clawback" the email on the grounds it was "unintentionally produced privileged material." Naturally, Oracle objected, and after a three-month legal battle, Alsup refused last month to exclude the document at trial.

How did Google let such a crucial email slip through production?  It’s difficult to say without fully knowing their methodology.  Did they rely too much on technology to identify files for production without providing a full manual review of all files being produced?  Or, did manual review (which can be far from perfect) let the email slip through as well?  Conceivably, organizing the documents into clusters, based on similar content, might have grouped the unsent drafts with the identified “attorney work product” final version and helped to ensure that the drafts were classified as intended.

So, what do you think?  Could this mistake cost Google billions?  Please share any comments you might have or if you’d like to know more about a particular topic.

 

eDiscovery Rewind: Eleven for 11-11-11
 

Since today is one of only 12 days this century where the month, day and year are the same two-digit numbers (not to mention the biggest day for “craps” players to hit Las Vegas since July 7, 2007!), it seems an appropriate time to look back at some of our recent topics.  So, in case you missed them, here are eleven of our recent posts that cover topics that hopefully make eDiscovery less of a “gamble” for you!

eDiscovery Best Practices: Testing Your Search Using Sampling: On April 1, we talked about how to determine an appropriate sample size to test your search results as well as the items NOT retrieved by the search, using a site that provides a sample size calculator. On April 4, we talked about how to make sure the sample set is randomly selected. In this post, we’ll walk through an example of how you can test and refine a search using sampling.

eDiscovery Best Practices: Your ESI Collection May Be Larger Than You Think: Here’s a sample scenario: You identify custodians relevant to the case and collect files from each. Roughly 100 gigabytes (GB) of Microsoft Outlook email PST files and loose “efiles” is collected in total from the custodians. You identify a vendor to process the files to load into a review tool, so that you can perform first pass review and, eventually, linear review and produce the files to opposing counsel. After processing, the vendor sends you a bill – and they’ve charged you to process over 200 GB!! What happened?!?

eDiscovery Trends: Why Predictive Coding is a Hot Topic: Last month, we considered a recent article about the use of predictive coding in litigation by Judge Andrew Peck, United States magistrate judge for the Southern District of New York. The piece has prompted a lot of discussion in the profession. While most of the analysis centered on how much lawyers can rely on predictive coding technology in litigation, there were some deeper musings as well.

eDiscovery Best Practices: Does Anybody Really Know What Time It Is?: Does anybody really know what time it is? Does anybody really care? OK, it’s an old song by Chicago (back then, they were known as the Chicago Transit Authority). But, the question of what time it really is has a significant effect on how eDiscovery is handled.

eDiscovery Best Practices: Message Thread Review Saves Costs and Improves Consistency: Insanity is doing the same thing over and over again and expecting a different result. But, in ESI review, it can be even worse when you get a different result. Most email messages are part of a larger discussion, which could be just between two parties, or include a number of parties in the discussion. To review each email in the discussion thread would result in much of the same information being reviewed over and over again. Instead, message thread analysis pulls those messages together and enables them to be reviewed as an entire discussion.

eDiscovery Best Practices: When Collecting, Image is Not Always Everything: There was a commercial in the early 1990s for Canon cameras in which tennis player Andre Agassi uttered the quote that would haunt him for most of his early career – “Image is everything.” When it comes to eDiscovery preservation and collection, there are times when “Image is everything”, as in a forensic “image” of the media is necessary to preserve all potentially responsive ESI. However, forensic imaging of media is usually not necessary for Discovery purposes.

eDiscovery Trends: If You Use Auto-Delete, Know When to Turn It Off: Federal Rule of Civil Procedure 37(f), adopted in 2006, is known as the “safe harbor” rule. While it’s not always clear to what extent “safe harbor” protection extends, one case from a few years ago, Disability Rights Council of Greater Washington v. Washington Metrop. Trans. Auth., D.D.C. June 2007, seemed to indicate where it does NOT extend – auto-deletion of emails.

eDiscovery Best Practices: Checking for Malware is the First Step to eDiscovery Processing: A little over a month ago, I noted that we hadn’t missed a (business) day yet in publishing a post for the blog. That streak almost came to an end back in May. As I often do in the early mornings before getting ready for work, I spent some time searching for articles to read and identifying potential blog topics and found a link on a site related to “New Federal Rules”. Curious, I clicked on it and…up popped a pop-up window from our virus checking software (AVG Anti-Virus, or so I thought) that the site had found a file containing a “trojan horse” program. The odd thing about the pop-up window is that there was no “Fix” button to fix the trojan horse. So, I chose the best available option to move it to the vault. Then, all hell broke loose.

eDiscovery Trends: An Insufficient Password Will Thwart Even The Most Secure Site: Several months ago, we talked about how most litigators have come to accept that Software-as-a-Service (SaaS) systems are secure. However, according to a recent study by the Ponemon Institute, the chance of any business being hacked in the next 12 months is a “statistical certainty”. No matter how secure a system is, whether it’s local to your office or stored in the “cloud”, an insufficient password that can be easily guessed can allow hackers to get in and steal your data.

eDiscovery Trends: Social Media Lessons Learned Through Football: The NFL Football season began back in September with the kick-off game pitting the last two Super Bowl winners – the New Orleans Saints and the Green Bay Packers – against each other to start the season. An incident associated with my team – the Houston Texans – recently illustrated the issues associated with employees’ use of social media sites, which are being faced by every organization these days and can have eDiscovery impact as social media content has been ruled discoverable in many cases across the country.

eDiscovery Strategy: "Command" Model of eDiscovery Must Make Way for Collaboration: In her article "E-Discovery 'Command' Culture Must Collapse" (via Law Technology News), Monica Bay discusses the old “command” style of eDiscovery, with a senior partner leading his “troops” like General George Patton – a model that summit speakers agree is "doomed to failure" – and reports on the findings put forward by judges and litigators that the time has come for true collaboration.

So, what do you think?  Did you learn something from one of these topics?  If so, which one?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscoveryDaily would like to thank all veterans and the men and women serving in our armed forces for the sacrifices you make for our country.  Thanks to all of you and your families and have a happy and safe Veterans Day!

eDiscovery Best Practices: Cluster Documents for More Effective Review
 

With document review estimated to up to 80% of the total cost of the eDiscovery process and the amount of data in the world growing at an exponential rate, it’s no wonder that many firms are turning to technology to make the review process more efficient.  Whether using sophisticated searching capabilities of early case assessment (ECA) tools such as FirstPass®, powered by Venio FPR™ to filter collections more effectively or predictive coding techniques (as discussed in these two recent blog posts) to make the coding process more efficient, technology is playing an important role in saving review costs.  And, of course, review tools that manage the review process make review more efficient (like OnDemand®), simply by delivering documents efficiently and tracking review progress.

How the documents are organized for review can also make a big difference in the efficiency of review, not only saving costs, but also improving accuracy by assigning similar documents to the same reviewer.  This process of organizing documents with similar content into “clusters” (also known as “concepts”) helps each reviewer make quicker review decisions (if a single reviewer looks at one document to determine responsiveness and the next few documents are duplicates or mere variations of that first document, he or she can quickly “tag” most of those variations in the same manner or identify the duplicates).  It also promotes consistency by enabling the same reviewer to review all similar documents in a cluster (for example, you don’t get one reviewer marking a document as privileged while another reviewer fails to mark a copy of the that same document as such, leading to inconsistencies and potential inadvertent disclosures).  Reviewers are human and do make mistakes.

Clustering software such as Hot Neuron’s Clustify™ examines the text in your documents, determines which documents are related to each other, and groups them into clusters.  Clustering organizes the documents according to the structure that arises naturally, without preconceptions or query terms.  It labels each cluster with a set of keywords, providing a quick overview of the cluster.  It also identifies a “representative document” that can be used as a proxy for the cluster.

Examples of types of documents that can be organized into clusters:

  • Email Message Threads: Each message in the thread contains the conversation up to that point, so the ability to group those messages into a cluster enables the reviewer to quickly identify the email(s) containing the entire conversation, categorize those and possibly dismiss the rest as duplicative (if so instructed).
  • Document Versions: As “drafts” of documents are prepared, the content of each draft is similar to the previous version, so a review decision made on one version could be quickly applied to the rest of the versions.
  • Routine Reports: Sometimes, periodic reports are generated that may or may not be responsive – grouping those reports together in a cluster can enable a single reviewer to make that determination and quickly apply it to all documents in the cluster.
  • Published Documents: Have you ever published a file to Adobe PDF format?  Many of you have.  What you end up with is an exact copy of the original file (from Word, Excel or other application) in content, but different in format – hence, these documents won’t be identified as “dupes” based on a HASH value.  Clustering puts those documents together in a group so that the dupes can still be quickly identified and addressed.

Within the parameters of a review tool which manages the review process and delivers documents quickly and effectively for review, organizing documents into clusters can speed decision making during review, saving considerable time and review costs.

So, what do you think?  Have you used software to organize documents into clusters or concepts for more effective review?  Please share any comments you might have or if you’d like to know more about a particular topic.

Full disclosure: I work for CloudNine Discovery, which provides SaaS-based eDiscovery review applications FirstPass® (for early case assessment) and OnDemand® (for linear review and production).  CloudNine Discovery has an alliance with Hot Neuron and uses Clustify™ software to provide conceptual clustering and near-duplicate identification services for its clients.

eDiscovery Trends: Why Predictive Coding is a Hot Topic
 

Yesterday, we considered a recent article about the use of predictive coding in litigation by Judge Andrew Peck, United States magistrate judge for the Southern District of New York. The piece has prompted a lot of discussion in the profession. While most of the analysis centered on how much lawyers can rely on predictive coding technology in litigation, there were some deeper musings as well.

We all know the reasons why predictive coding is considered such a panacea, but it is easy to forget why it is needed and why the legal industry is still grappling with eDiscovery issues after so many years. Jason Baron, Director of Litigation at the U.S. National Archives and Records Administration, recently won the 2011 Emmett Leahy Award for excellence in records and information management. He took the opportunity to step back and consider why exactly the problem won’t go away. He believes that technology can help solve our problems, if applied intelligently. “We lawyers types remain stuck in a paradigm that too often relies on people and not automated technologies,” he said.

But he also warns that electronically stored data may soon overwhelm the profession. By now, readers of this blog are familiar with the dire and mind-boggling predictions about the volume of discoverable electronic data being created every day. Litigators are obviously concerned that new types of information and growing volumes of data will swamp the courts, but the problem could affect all aspects of modern life. “At the start of the second decade of the 21st century, we need to recognize that the time is now to prevent what I have termed the coming digital dark ages,” Baron said. “The ongoing and exponentially increasing explosion of information means that over the next several decades the world will be seeing records and information growth orders of magnitude greater than anything seen by humankind to date. We all need better ways to search through this information.”

As one of the leaders of the TREC Legal Track, a research experiment into searching large volumes of data more effectively, Baron has an intimate understanding of the challenges ahead, and he has serious concerns. “The paradox of our age is information overload followed by future inability to access anything of important. We cannot let that future happen” he said, talking to a roomful of records management experts and litigators. “We all need to be smarter in preventing this future dystopia.”

eDiscovery blogger Ralph Losey linked to both Judge Peck’s article and Jason’s speech, and expanded on those thoughts. Losey prefers to believe, as he wrote in a post called The Dawn of a Golden Age of Justice, that lawyers will not only survive, but thrive despite the explosion in information. “We must fight fire with fire by harnessing the new (Artificial Intelligence) capacities of computers,” he says. “If we boost our own intelligence and abilities with algorithmic agents we will be able to find the evidence we need in the trillions of documents implicated by even average disputes.”

So, what do you think? Will Artificial Intelligence in the hands of truth-seeking lawyers save us from information overload, or has the glut of electronic information already swamped the world? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: A Green Light for Predictive Coding?
 

There are a handful of judges whose pronouncements on anything eDiscovery-related are bound to get legal technologists talking. Judge Andrew Peck, United States magistrate judge for the Southern District of New York is one of them. His recent article, Search, Forward, published in Law Technology News, is one of the few judicial pronouncements on the use of predictive coding and has sparked a lively debate.

To date there is no reported case tackling the use of advanced computer-assisted search technology (“predictive coding” in the current vernacular) despite growing hype. Many litigators are hoping that judges will soon weigh in and give the profession some real guidance on the use of predictive coding in litigation. Peck says it will likely be a long time before a definitive statement come from the bench, but in the meantime his article provides perhaps the best insight into at least one judge’s thinking.

Judge Peck is probably best known in eDiscovery circles for the March 19, 2009 decision, William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009) (Peck, M.J.). In it, he called for "careful thought, quality control, testing and cooperation with opposing counsel in designing search terms or 'keywords' to be used to produce emails or other electronically stored information".

Peck notes that lawyers are not eager to take the results of computer review before a judge and face possible rejection. However, he says those fears are misplaced, that admissibility is defined by content of a document, not how it was found. Peck also relies heavily on research we have discussed on this blog, including the TREC Legal Track, to argue that advanced search technology can provide defensible search methods.

While he stops short of green lighting the use of such technology, he does encourage lawyers in this direction. “Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval,” he writes. “In my opinion, computer-assisted coding should be used in those cases where it will help ‘secure the just, speedy, and inexpensive’ (Fed. R. Civ. P. 1) determination of cases in our e-discovery world.”

Silicon Valley consultant Mark Michels agrees with Peck’s article writing in Law Technology News that, “the key to (predictive coding’s) defensibility is upfront preparation to ensure that the applied tools and techniques are subject to thoughtful quality control during the review process.”

But other commenters are quick to point out the limitations of predictive coding. Ralph Losey expands on Peck’s argument, describing specific and defensible deployment of predictive coding (or Artificial Intelligence in Losey’s piece). He says predictive coding can speed up the process, but that the failure rate is still too high. Losey points out “the state of technology and law today still requires eyeballs on all ESI before it goes out the door and into the hands of the enemy,” he writes. “The negative consequences of disclosure of secrets, especially attorney-client privilege and work product privilege secrets, is simply too high.”

Judge Peck’s article is just one sign that thoughtful, technology-assisted review be deployed in litigation. Tomorrow, we will review some darker musings on the likelihood that predictive coding will save eDiscovery from the exploding universe of discoverable data.

So, what do you think? Is predictive coding ready for prime time?  Can lawyers confidently take results from new search technology before a judge without fear of rejection? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: Sometimes the Vendor Sues the Law Firm – And Wins!
 

The eDiscovery malpractice case involving McDermott, Will & Emery has captured considerable interest in the industry and this blog, with recent posts here, here and here to relate developments in the case associated with inadvertent production of 3,900 privileged documents.

Sometimes, the “shoe is on the other foot”, so to speak.

As noted in David’s Snow’s article on Law Technology News entitled Is Cataphora Case a Sign of Vendor-Law Firm Fights to Come?, Cataphora (which has its legal division acquired by Ernst & Young since the case was filed) won a judgment of $317,113 against several big-time mass-torts plaintiffs firms in a breach of contract case.

In Cataphora, Inc. v. Parker et al., Cataphora sued the plaintiffs firms associated with the Chinese drywall multidistrict litigation for breach-of-contract, for cancelling the contract for pre-trial document review after receiving an invoice for an up-front fee of $366,000. Cataphora never did the work.

According to Roger Chadderdon, technology counsel at Cataphora, who represented the company in court, “We got screwed,”. “Their strategy from day one was to drag this out as long as possible to make it go away.”  He says the plaintiffs firms told Cataphora, “Sue us if you dare.”

They dared, and the jury decided in favor of Cataphora, that the contract was enforceable, and issued the award. This case was tried in the Northern District of California Magistrate court – an appeal is expected.

The plaintiffs firms associated with this litigation have been involved in a wide variety of multimillion dollar class-action lawsuits, ranging from Vioxx to the BP oil spill to the Toyota acceleration defect to the Bridgestone / Firestone tire cases.

“These guys are the worst of hypocrites that you can possibly find,” Chadderdon says. “They claim to be trying to help the little guy, but what they’re doing is trying to put more money in their own pockets. Everybody knows that, but this is a case that illustrates it beyond what I have ever seen.”

Snow’s article quotes Tom O’Connor, a previous thought leader on this blog, for reactions, and O’Connor asked the question “How many vendors have you ever heard of suing lawyers and winning?”,  O’Connor noted that “Mostly the dirty linen in this stuff never goes public.  In the old days, they'd settle the case. From the firm point of view, nobody wanted their business practices aired. That's not the sort of lawsuit that ever would've been filed 5 years ago.”

As Snow’s article notes, the Above the Law blog has a more extensive write-up on the case for more information.

So, what do you think?  Do the McDermott and Cataphora cases signal a trend of contentious relationships between vendor and law firm?  Or are they aberrations?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Trends: A Site Designed to Facilitate Meet and Confer Conferences
 

The past two days, we discussed the basics of the Rule 26(f) “meet and confer” conference and details regarding the topics to discuss during that conference.  Hopefully, you found that review informative.

Now, as noted in a recent Law Technology News article by Sean Doherty, there’s a web application to facilitate the process to prepare for and conduct the Rule 26(f) conference.

MeetandConfer.com, provided by 26F LLC, was created to help attorneys prepare for court mandated “meet and confer” meetings.  The application is designed for law firms and corporate clients to help them determine the content, scope, and extent of ESI associated with the case.  There are four modules to coordinate the process, as follows:

  • Manage Enterprise Information: Enables users to map out organizational information, allowing all parties to understand where potentially relevant ESI is located, policies and practices associated with the ESI, and who is responsible for the ESI.  This module also enables various aspects of the organization to be documented, including backup policies and disaster recovery plans.
  • Matter Scoping: Enables users to track the various matters, and, for each matter, it enables users to track custodians and generate surveys to gather information about the locations of potentially responsive ESI.
  • Meet and Confer: Allows attorneys to define essential ESI needs for both parties while projecting a budget to identify, collect and process the data.  This module also provides a mechanism for computer-aided video conferencing (which can be facilitated by an independent mediator) to actually conduct the conference.
  • System Administration: Supports the creation of clients and users and establish rights for each user group.

Sean’s article mentioned above goes into more detail into each module, reflecting his “hands on” experience in “test driving” the application.  MeetandConfer.com is offering a free one month trial to “qualified” users (i.e., attorneys and judges), with the monthly rate of $149 per user to be billed after the free trial.

So, what do you think? Would an application like this make it easier to fully prepare for “meet and confer” conferences? Would you consider using such an application?  Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Rules: ESI Topics of the "Meet and Confer"
 

Yesterday, we talked about the basics of the Rule 26(f) “meet and confer” conference, Today, let’s go into more detail about the topics that are typically covered during the “meet and confer”, and why.

The "meet and confer" conference focuses on the exchange of information regarding discovery and the creation of a comprehensive plan that will govern the sharing and privilege of ESI. Accordingly, the requirements of this meeting specify discussion of the following topics:

  • Initial Disclosures: This exchange may be specific and detailed or very basic, depending on the needs of the case and the attorney's agendas. Proposed changes to the requirements, timing, or form of these disclosures may be discussed.
  • Topics on which Discovery may be Needed: It may be easy to agree on subjects for which discovery is necessary, or it may require prolonged discussion to reach an accord. In some instances, time and expense can be saved by beginning with a single area and later expanding discovery to include other topics, if necessary. Known as "phased discovery", this can be a very effective choice, as long as it is conducted in a way that does not require duplication of effort in later phases.
  • Format of Production of ESI: Although the actual discovery process may be conducted over weeks or even months after the conference, it's important to agree now on the format of production to prevent parties from accidentally converting files into a type that will later prove to be inconvenient or result in loss of data. This is especially important if one party has a request for a particular format.
  • Privilege, Inadvertent Disclosure, and Protective Orders: Although we all strive to prevent disclosure of privileged information, it's important to discuss in advance the possible implications and a process for dealing with such an eventuality, if it should occur.
  • Potential Deviations from Discovery Rules Requirements: In some cases, opposing attorneys will agree that they can accomplish discovery in fewer depositions than specified by Federal Rules or local rules. If so, this discussion and any related proposals should be part of the "meet and confer" conference so they can be incorporated into the discovery plan.
  • Any Other Orders or Concerns about Discovery: From discovery agreements to questions or requests, almost any topic related to eDiscovery can be part of the "meet and confer" conference.

To get the most out of the "meet and confer," and to save time and expense, most attorneys will prepare an extensive agenda of the topics for discussion in advance of the meeting itself. Although there are many other topics that may be included in the conference, this list covers key requirements of the Rule 26(f) "meet and confer" conference and the discovery plan to be created there.

So, what do you think? Did you learn something that you didn’t already know about the Rule 26(f) "meet and confer" conference?  If so, then we accomplished our goal! Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Rules: What's Really Required for the "Meet and Confer"?
 

Almost any litigation professional who works with eDiscovery is aware of the Rule 26(f) "meet and confer" conference, but many don't fully understand its parameters and how it affects ESI. What exactly is the "meet and confer" and what are some of its implications in regard to eDiscovery?

What is the "Meet and Confer"?

The "meet and confer" conference is now a requirement in Federal cases as of the rules changes of 2006 to the Federal Rules of Civil Procedure. In addition to Rule 26(f) for Federal cases, an increasing number of states now have (or are contemplating) a similar rule.  It provides an opportunity for the parties in a lawsuit to discuss discovery and create a plan for the sharing of information during and before trial.

The goal of the "meet and confer" rules is to provide a basis for an open exchange of information and a productive dialogue about discovery-related topics. Even in the antagonistic world of litigation, it is possible to reach an accord on the details of discovery by conforming to the requirements of these rules and of the discovery process.

What are the Parameters of the "Meet and Confer"?

Rule 26(f) states that attorneys must meet and discuss "any issues about preserving discoverable information" as well as developing a "discovery plan." It also specifies that:

  • Attorneys must already be aware of the location and nature of their own clients' computer systems and discoverable documents, and must be prepared to ask questions about their opponents' ESI, electronic systems, and data preservation actions.
  • In order to be fully prepared for this conference, an attorney needs to know as much as possible about the location, volume, and logistical challenges that surround the collection of ESI, as well as the client's preferences regarding privilege, protective orders, and document review.
  • The more informed the attorneys are on each of these counts, the more capable they will be to address relevant issues, streamline the discovery process, and minimize eDiscovery costs.
  • Attorneys may exchange either in-depth or limited information about the legal holds process.
  • The result of the "meet and confer" conference is to establish a comprehensive discovery plan and lay the groundwork for the discovery aspects of the rest of the proceeding.

Tomorrow, I’ll go into more details about the specific topics to be covered at the Rule 26(f) conference.  Oh, the anticipation!

So, what do you think? Do you have any experience with Rule 26(f) conferences that went awry or cases where having a Rule 26(f) conference would have helped? Please share any comments you might have or if you'd like to know more about a particular topic.

eDiscovery Trends: Lawyers Versus Machines – Who’s “Winning”?
 

As discussed on this blog, mainstream publications including The New York Times and Forbes have noticed the rise of search technology in discovery, particularly predictive coding. The New York Times article, Armies of Expensive Lawyers, Replaced by Cheaper Software, inspired a lot of consternation in the legal community by proposing that technology was replacing human lawyers. Among the first to reply, Ralph Losey wrote a blog post New York Times Discovers eDiscovery, But Gets the Jobs Report  Wrong, arguing that “the supposed job-chilling impact of these new technologies on the legal profession was off the mark. In fact, the contrary is true.”

However, the Times article does point to a real trend – clients demanding that their outside counsel and litigation support teams use technology to work more efficiently. “Just because the “paper of record” says something doesn’t make it so, of course. But it does mean that every GC and Litigation DGC/AGC in America (and likely Canada) now has this trend on their radar,” litigation project management guru Steven Levy wrote on the blog Lexican.

The obvious problem with the New York Times article is that search and review is an iterative process and demands human intervention to make the machines involved function properly.  However, the missing piece of the discussion today is exactly what the relation between human reviewers and computers should be. There is a nascent movement to investigate this topic, finding the line where machine-led review ends and where human intervention is necessary.

Recent research by some of the leaders of the TREC Legal Track research project has begun to explore the interaction between human and machine review. Maura Grossman, a litigator with Wachtell, Lipton, Rosen & Katz and one of the TREC coordinators, and Gordon Cormack, a computer scientist and fellow TREC-er, wrote the research paper Technology Assisted Review in eDiscovery Can be More Effective and Efficient Than Manual Review. As the title indicates, human review cannot match the accuracy of technology-assisted review. However, the paper points out the need for a roadmap detailing the ideal interaction between human lawyers and machine review in litigation. “A technology-assisted review process involves the interplay of humans and computers to identify the documents in a collection that are responsive to a production request, or to identify those documents that should be withheld on the basis of privilege.”

What may be endangered is the existing review process, as it has traditionally been practiced, not human attorneys. Bennett Borden, an attorney with Williams Mullin, argues the linear review processes cannot produce the same results as the skillful use of technology. He has some interesting asides about the ways lawyers can do things computer searches cannot. For example, human reviewers are able to intuitively “come upon a scent” of relevant documents that machines missed. He says that reviewers not only are able to effectively pursue information by following leads initiated by a computer, but they actually enjoyed the process more than straight-ahead manual review.

Clearly, more research is needed in this area, but if lawyers are going to defend their role in litigation, defining the role of lawyers in discovery is an important question. What do you think?  Please share any comments you might have or if you'd like to know more about a particular topic.