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Ralph Losey of Jackson Lewis, LLP – eDiscovery Trends, Part 1

This is the ninth of the 2013 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends?
  2. If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Ralph Losey. Ralph is an attorney in private practice with the law firm of Jackson Lewis, LLP, where he is a Partner and the firm’s National e-Discovery Counsel. Ralph is also an Adjunct Professor at the University of Florida College of Law teaching eDiscovery and advanced eDiscovery. Ralph is also a prolific author of eDiscovery books and articles, the principle author and publisher of the popular e-Discovery Team® Blog, founder and owner of an intensive online training program, e-Discovery Team Training, with attorney and technical students all over the world and founder of the new Electronic Discovery Best Practices (EDBP) lawyer-centric work flow model.

Ralph was very generous with his time again this year and our interview with Ralph had so much good information in it, we couldn’t fit it all into a single post.  So, today is part 1.  Part 2 will be published in the blog on Monday!

What are your general observations about LTNY this year and how it fits into emerging trends?

{Interviewed on the third morning of the show}  It seems to me that the show is larger than the prior few years.  I expected that since the economy is recovering.  I met an attendee the other night that had never been to LegalTech before who is a senior executive in a large company and she asked me how to tell which providers are really good.  Everyone is shouting at you “I have the best, I will solve it for you” and claiming they have the magic solution.  I told her that I think lawyers and other people in the legal industry are a little more discerning that your typical “person on the street” consumer, so they understand that this is a lot of hype and they see through it.  The hype is very strong and everyone claims they have the “magic pill”, so you have to be very discerning and really do your homework if you are here trying to shop for a solution; otherwise, it is honestly just a lot of noise.

As far as the sessions go, I have not had a chance to attend many of them because I have been busy preparing for my own.  I did attend a terrific judge panel yesterday where the format was to ask the judges whatever you want and the panel included Judge (James C.) Francis, Judge (Frank) Maas and Judge (Lisa Margaret) Smith.  It was right after my presentation with Jason Baron and I was sitting in the audience with Jason and several other experienced eDiscovery leaders that had an opinion.  We took advantage of this situation to kind of put the Judges on the spot in public and ask them questions that you would love to ask and the judges loved it and responded frankly.  I asked them questions like “Do any of you know of any legal authority to require a party to produce any irrelevant information for any reason?” and they all acknowledged they did not.

So, it was a very good opportunity to “pick” some of the top brains from the judiciary to find out what they think.  Because in some respects, what they think is more important than what we practitioners think, although in other respects, they look to us because we are actually doing the work and they are just resolving issues that arise. So, there are the two extremes at the show – the judges who will give it to you pretty straight, and the vendors claiming to have the “magic pill”.  I don’t really spend much time going to the vendor area because it is such a circus, but I think some people enjoy that.  Also, LegalTech has always been great for networking – a great opportunity to meet old friends and also make new ones and I always enjoy that part of it.

If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?

In my opinion, last year’s question was “should we use TAR?”  I believe the “next big thing” now is how we use TAR. By the way, I prefer the acronym “CAR”, because I don’t want to be stuck in the “TAR pit”; instead, I prefer to be zooming at 500 files per hour in my “CAR” so I like to kid about that.  There are very important issues about how you actually do predictive coding, which I am writing about and have my own strong opinions about.  I like to call predictive coding what scientists call it – Machine Training.  Machine Training is “disruptive technology”, a term which comes out of Silicon Valley that describes brand new technology (like the iPad) that replaces existing technology and just totally changes the market place.  I believe that machine training is “disruptive technology” in the legal search area and I don’t think this is a one year only “boom”.  It’s not like where early case assessment was the hot item a few years ago.

Machine training and machine learning is more like a decade long “boom” that I think is totally transforming the software industry in legal search and legal review.  So, I think many vendors have been caught by surprise and are behind the curve and, as a result, he who is on top now may find themselves on the bottom.  That is what “disruptive technology” means.  That’s why Microsoft stock is now down so much and Apple’s market capitalization is now so huge (even though it’s dropped a bit recently, it’s still ahead of Exxon).

Last year, we were talking about whether to use it or not and I was talking about the advantages to using it.  I think that case has been made pretty forcefully now.  For example, in both my panels at the show this year and last, we asked the audience how many do predictive coding.  Last year, maybe 10% said they did, but this year two-thirds of the attendees said they did.  I cannot imagine anyone arguing for linear review.  It just makes no sense at all for a variety of reasons.  I cannot imagine anyone arguing for keyword search alone in every case, though it may still be appropriate for smaller cases.  We’re past arguing about whether you should use CAR, now we’re talking about how to “drive” your CAR and do you “drive” it while “carrying a horse with you” in case it breaks down.

Personally, I don’t think so, but there are a lot of people that are trying that approach.  Do you only use predictive coding or do you use what I call the “multimodal” approach, which I am talking about a lot in my blog.  “Multimodal” means you use more than one kind of search – using predictive coding, but also using keyword search, concept search, similarity search, all kinds of other methods that we have developed over the years to help train the machine.  The main goal is to train the machine.  It is ultimately the driver, but you have to have passengers in your CAR with you.  Some vendors only use predictive coding – they don’t use keyword search, they just use the machine itself, minimizing the importance and skill of the lawyer and minimizing the other search tools and the abilities we have learned over the years.

I think that is a mistake and I call that the “battle of the Borg”, because the Borg were only machine oriented and they didn’t do anything except what the machine told them to do.  I see the multimodal and what I call a “hybrid” approach as the opposite of fully automated.  Fully automated is an approach where you don’t think at all – the machine selects all the documents for you and does everything for you.  People are saying it’s a great easy to use thing, but I think that is wrong headed, so I call it the “battle of the Borg” and believe not in being fully automated, but rather being “hybrid”.  “Hybrid” means that I am using the skill of the attorney instead of just taking what the machine serves up to look at.  Use your own intelligence so that when the machine finds a new relevant document for you and you see “oh look, they are using this word”, then go ahead and perform a keyword search on that word.  The science is there to support that approach.  Some people think that just letting the machine do it will get to the same place and, maybe it will, but it is so much slower and, personally, I don’t think it will get to the same place.

More from Ralph on Monday!

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

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

 

Nigel Murray of Huron Legal – eDiscovery Trends

This is the eighth of the 2013 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends?
  2. If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Nigel Murray.  Nigel is Managing Director at Huron Legal.  Nigel has been at the forefront of the litigation support and e-Disclosure industry in the UK since 1991. He managed the first e-disclosure project to go before a U.K. court in the early 2000s and has since advised and worked with many clients in the U.K., mainland Europe and the Middle East in a range of industry sectors. Prior to joining Huron, Nigel was the founder and managing director of TRILANTIC, the first U.K.-based e-disclosure company, and a litigation support manager in a major international law firm. Nigel has been a speaker at engagements throughout the U.S., Europe and the Middle East, and he has published multiple articles.

What are your general observations about LTNY this year and how it fits into emerging trends?

This was my 15th Legal Tech show over 18 years and it was as good as ever.  The show attracts all the key people in the industry to New York where new ideas and concepts are discussed and shared in an informal environment.  This year did not bring any startling “new” technology, more a shift along the evolutionary cycle.

If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?

I have three thoughts about “big things” for the coming year.  The first is a continued refinement of the thinking on technology assisted review. This year, technology assisted review (sometimes called predictive coding) is becoming widespread and there are now a lot of companies that offer it.  However, my personal view is that there are still only a few of those solutions that are defensible and repeatable.  Regardless of how good the technology is, it still requires a great deal of expertise and work flow to actually get what you want out of it.  I predict that one of the challenges that will arise at some point will be a court case against a company that offers technology assisted review and it has gone wrong.  The people who really understand computer assisted review understand that it requires a process.

Another area that has been around for a while but is gaining emphasis – is the effective management of corporation’s data. New, affordable technologies are available to dramatically reduce the amount of rubbish within an organization, as well as de-duplicate the huge volumes of data.  That falls into a number of areas within the EDRM model and within organizations’ structures: its partly risk, partly records and information management (RIM) and partly information governance.  I feel that over the next three years, the whole area could become increasingly important.  Now, that will drive down the cost of eDiscovery because if, after you have effectively whittled down your rubbish and got rid of the duplicates, you have only one-third of the documents to manage, which will ensure that your eDiscovery costs are going to be dramatically lower.

Data management combines with the third area that I think will be talked about this year, and that is information security. A lot of corporations understand the importance of keeping their information secure and some corporations, like banks, are required to do so.  However, the model that we have built up is that even though companies may keep their sensitive data secure internally, when it is time for discovery, they give the data to other organizations to process and work with; and those organizations may not have that same level of security.  At a fascinating dinner the other night, I heard about 20 to 50 corporations saying, “we cannot trust our law firms to look after our data securely.”  The keynote speaker told the dinner that he had recently gone to a law firm and asked whether they believed they were secure, and they said “of course, we are secure.” He then produced the minutes from the firm’s board meeting two days previously!  Stories like that are becoming widely known by corporations, so I think the effect is that the corporations are increasingly going to want to keep the data behind their own firewalls.  The data will be reduced, analyzed and hosted behind a company’s firewall and the external review entity and the law firm will be looking at the data within that domain.  I think that is going to be a significant change to this industry.

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

At Huron Legal this year, we have launched Integrated Analytics, which falls under the TAR/CAR brackets.  Integrated Analytics is built around data analytics specialists who are both lawyers and database administrators, so they understand data and are lawyers as well, which is an unusual, but effective, combination.  The approach that we have taken is that we will work with internal counsel and external advisers where we do the “pushing of the buttons” and perform the searches.  We prefer to do it for our clients because junior and senior attorneys charging 200 an hour are not necessarily the most qualified to be performing the analytics in the most defensible and reputable manner. So, we launched this service to help our clients reduce the amount of data that needs to be reviewed and also speed up that review process.  We have the expertise to get through data more quickly, resulting in cost savings, so it’s a different model from those who try to do it themselves.  We also provide within our pricing expert testimony from statisticians and lawyers on our process, if required.  The launch of our Integrated Analytics team is our big news here at the show.

Thanks, Nigel, for participating in the interview!

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

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

Must Losing Plaintiff Pay Defendant $2.8 Million for Predictive Coding of One Million Documents? Court Says Yes – eDiscovery Case Law

In Gabriel Technologies Corp. v. Qualcomm Inc., (Dist. Court, SD Cal., February, 1 2013), District Judge Anthony J. Battaglia awarded the defendant over $12.4 million in attorneys’ fees to be paid by the losing plaintiff in the case.  The amount included over $2.8 million for “computer-assisted, algorithm-driven document review” and nearly $392,000 for contract attorneys to review documents identified by the algorithm as responsive.

Defendants filed motions for summary judgment in this four year patent and breach of contract case in September 2011 and August 2012 and ultimately successfully obtained judgment in their favor for all of the plaintiff’s claims (pending appeal).  Then, on October 12, 2012, the defendants filed a motion for recovery of attorneys’ fees in the case – to the tune of $13.4 million.

One key component of the request for fees in the October 2012 motion was the request to recover fees of $2,829,349.10 “for document review performed by complex computer algorithm generated by San Francisco-based H5”.  As noted in the motion:

“Over the course of this litigation, Defendants collected almost 12,000,000 records—most in the form of Electronically Stored Information (ESI)…Rather than review this entire volume, the parties negotiated and agreed to a set of search terms early in this litigation to cull irrelevant documents from the review population. Defendants applied those terms across all the ESI Defendants collected for this case. Rather than manually reviewing the huge volume of resultant records, Defendants paid H5 to employ its proprietary technology to sort these records into responsive and non-responsive documents…The H5 algorithm made initial responsiveness determinations for more than one million documents.”

Based on the above citation, it seems evident that the H5 algorithm was used only after keyword search terms reduced the set to more than one million documents, not on the original 12 million documents.  And, the fees for applying the algorithm to those one million documents were over $2.8 million, or roughly in the range of $2.80 per document.  Interesting…

The motion also requested recovery of $391,928.91 in fees assessed by Black Letter for human review of the resulting identified responsive documents, noted as follows: “Black Letter Discovery’s attorneys reviewed those documents already deemed responsive by the H5 algorithm and checked them for confidentiality, privilege, and relevance.”

In his ruling, Judge Battaglia noted with regard to the fees for the algorithm and for human review:

“For this reason, the review performed by H5 and Black Letter accomplished different objectives with the H5 electronic process minimizing the overall work for Black Letter. Again, the Court finds Cooley’s decision to undertake a more efficient and less time-consuming method of document review to be reasonable under the circumstances. In this case, the nature of Plaintiffs’ claims resulted in significant discovery and document production, and Cooley seemingly reduced the overall fees and attorney hours required by performing electronic document review at the outset. Thus, the Court finds the requested amount of $2,829,349.10 to be reasonable.”

As a result, Judge Battaglia awarded the fees for both the algorithm and for human review as part of an overall award of $12,401,014.51 (about $1 million less than the total requested).  Plaintiff’s local counsel was also ordered to pay $64,316.50 to the defendants as part of the judgment.

So, what do you think?  Does that appear to be a reasonable cost for predictive coding of one million documents?  Please share any comments you might have or if you’d like to know more about a particular topic.

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

George Socha of Socha Consulting LLC – eDiscovery Trends

This is the seventh of the 2013 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends?
  2. If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is George Socha.  A litigator for 16 years, George is President of Socha Consulting LLC, offering services as an electronic discovery expert witness, special master and advisor to corporations, law firms and their clients, and legal vertical market software and service providers in the areas of electronic discovery and automated litigation support. George has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; in 2011, he and Tom Gelbmann converted the Survey into Apersee, an online system for selecting eDiscovery providers and their offerings.  In 2005, he and Tom Gelbmann launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle and there are nine active projects with over 300 members from 81 participating organizations.  George has a J.D. for Cornell Law School and a B.A. from the University of Wisconsin – Madison.

What are your general observations about LTNY this year and how it fits into emerging trends?

First of all, this year’s show has a livelier feel to it after a few years where it was feeling a bit flat, no doubt probably due to the economy.  The show has more “spark” to it, which is good not just for this conference but also for the industry and where it’s at and where it’s going.

As for the curriculum, if last year was the year of TAR/CAR/Predictive Coding, so was this year.  It’s also the year of “big data” – whatever “big data” means – and it may or may not be the year of information governance – whatever that means. I think a lot of what we see continues to focus on the same underlining set of issues, that providers are being ever more creative with the packages of the services, software and the capabilities they are offering.  They are trying to figure out how to get those offerings in front of the consuming audience with a compelling story addressing the question of why should you go the extra step and use what they have to offer instead of doing things as you always have done them.  Predictive coding is still more discussion than action, but it is interesting to hear the different opinions.  I moderated a panel with two trial lawyers who are head of their eDiscovery practice groups, who talked about the processes they now go through with clients where discussing predictive coding, to determine whether it’s appropriate for a given case.  The two attorneys were discussing the benefits of CAR, the drawbacks, how much extra it is likely to cost, how much it is likely to save and whether it is likely to even save anything.  This is a discussion that didn’t happen much a year ago and hardly at all two years ago.  To place this in context, however, I have worked with one corporation that has been doing what we now call Computer Assisted Review since 2003 to my direct knowledge and, I am told, since 2000.  CAR is not new in terms of techniques, rather it is new in terms of its packaging and presentation and “productization”.

If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?

If you look at the eDiscovery industry, what the software providers have been developing and the skills and expertise that the service providers and law firms have been building up over the years, they are amassing a powerful set of capabilities that until now has been focused on one pretty narrow set of issues – eDiscovery. I see people starting to take those tools, techniques and experience and beginning to point them in new directions far beyond just eDiscovery, because most of what we deal with in eDiscovery applies in other areas as well.  For example, I see a turn toward broader information governance issues, such as how you get your electronic house in order so that things like eDiscovery become less of a pain point, and how do you do a better job or figuring out what is and what isn’t a record, and how can you get rid of content you been holding onto for years.  These issues extend beyond eDiscovery.  They include what you do to identify compliance challenges, and monitoring whether you are meeting those challenges in an effective fashion.  You could use the same technologies and approaches to improve how you manage your intellectual property assets, essentially pointing the EDRM framework in a new direction.  I think we are on the brink of what could be an enormous of expansion of uses of these capabilities that have been developed in a niche area for some time now.

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

With regard to EDRM, we are approaching our tenth year.  We are looking to that milestone and asking ourselves what EDRM should be today, what it should be tomorrow, and what can we do to improve what we do and how we do it.  We are going to shift to smaller working groups focused on more targeted projects with a shorter delivery cycle.  You can see the beginnings of that in some of our recently published deliverables.

The Computer Assisted Review Reference Model (CARRM) (our blog post about CARRM here) was our first outcome using this process and the second was the EDRM Talent Task Matrix (our blog post about it here) that we published on Monday.  For now, the Talent Task Matrix consists of a diagram that helps explain the concept as well as an accompanying spreadsheet which is available in Excel format (XLSX) or Adobe Acrobat (PDF) format that anyone can download.  We are looking for comments and feedback on the matrix and anticipate that it will fill a need and a gap that are not otherwise being addressed.

With regard to Apersee, providers continue to add information about themselves and we continue to add features.  In the past year, we replaced the search engine with a faceted search mechanism that is simpler to use.  We added an Event Calendar with links to Apersee providers. We added in a Press Release section which works in much the same way.  We’re looking to develop two additional sections which take specific types of content associated with providers and make that available within the application.  The underlining notion is to better help consumers evaluate providers on many dimensions, with an easily followed structure to the content available through the site.

Finally, we added the ability for consumers to submit Special Requests, so that if in looking for a provider and searching through the website they do not find the result they need, they always can submit a special request to us through the click of a button.  We reformulate the message and send it out to about 2,700 people in the provider community.  Unless you choose otherwise, the request is totally anonymous.  Typically, we get back 20 to 40 relevant responses within the first few hours, which usually is more information than the requestor can handle.  The responses from the request system have been very positive.

Thanks, George, for participating in the interview!

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

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

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

This is the sixth of the 2013 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends?
  2. If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?
  3. What are you working on that you’d like our readers to know about?

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

What are your general observations about LTNY this year and how it fits into emerging trends?

{Interviewed on the second afternoon}  Looking at the show and walking around the exhibit hall, I feel like the show is less chaotic than in the past.  It seems like there are less vendors, though I don’t know that for a fact.  However, the vendors that are here appear to have accomplished quite a bit over the last twelve months to better clarify their messaging, as well as to better fine tune their offerings and the way they present those offerings.  It’s actually more enjoyable for me to walk through the exhibit hall this year – last year felt so chaotic and it was really difficult to differentiate the offerings.  That has been a problem in the legal technology business – no one really knows what the different vendors really do and they all seem to do the same thing.  Because of better messaging, I think this is the first year I started to truly feel that I can differentiate vendor offerings, probably because some of the vendors that entered the industry in the past few years have reached a maturity level.

So, it’s not that I am not seeing new technologies, methods or ways of doing things in eDiscovery; instead, I am seeing better ways of doing things.  As well as vendors simply getting better at their own pitch and messaging.  And, by that, I mean everything involved in the messaging – the booth, the sales reps in the booth, the product being offered, everything.

If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?

I think this year’s “next big thing” follows the same theme as last year’s “next big thing”, only you’re going to see more mature Technology Assisted Review (TAR) solutions and more mature predictive coding.  It won’t be just that people provide a predictive coding solution; they will also provide a work flow around the solution and a UI around the solution, as well as a method, a process, testing and even certification.  So, what will happen is that the trend will still be technology assisted review and predictive coding and analytics, just that it won’t be so “bleeding edge”.  The key is presentation of data such that it helps attorneys get through the data in a smarter way – not necessarily just culling, but understanding the data that you have and how to get through it faster and more accurately.  I think that the delivery of those approaches through solution providers, software providers and even service providers seems to be more mature and more focused.  Now, there is an actual tangible “thing” that I can touch that shows it is not just a bullet point – “Hey, we do predictive coding!” – instead, there is actually a method in which it is deployed to you, and to your case or your matter.

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

BIA is really redefining eDiscovery with respect to how the corporate customer looks at it.  How does the corporation look at eDiscovery?  They look at it as part of information security and information management and we find that IT departments are very much more involved in the decision making process.  Having information security roots, BIA is leveraging our preservation technology and bringing in an eDiscovery tool kit and platform that a company can use that will get them where they need to be with respect to compliance, defensibility and efficiency.  We also have the only license model for eDiscovery in the business with respect to the kind of corporate license model, the per seat model that we offer.  We are saying “look, we have been doing this for 10 years and we know exactly what we are doing”.  We use cutting edge technology and while other cloud providers have claimed that they are leveraging utility computing, we are not only saying that, we are actually doing it.  If you don’t believe us, check it out and bring your best technology people and they will see we are telling the truth on that.  We are leveraging our technology for what happens from the corporate perspective.

We are not a review tool and you cannot produce documents out of our software, but that is why clients have software products like OnDemand®; with it, they can do all the different types of review they want and batch it out and use 100 reviewers or 10 reviewers or whatever.  BIA supports the corporations who care about legal hold and preservation and collections and insuring that they are not sending millions of gigs over for costly review.  We support from the corporate perspective, whether you want to call it on the left side of the EDRM model or not, what the GC needs.  GCs want to make sure that they have not deleted some piece of data that will be needed in court.  Notifying clients of that requirement, taking a “snap shot” of that data, locking it down, collecting that data and then insuring that our clients are following the right work flow is basically what we bring to the table.  We have also automated about 80% of the manual tasks with TotalDiscovery, which makes the GC happy and brings that protection to the organization at the right price.  Between TotalDiscovery and a review application like OnDemand, you don’t need anything else.  You don’t need twenty applications for a full solution – two applications are all you need.

Thanks, Alon, for participating in the interview!

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

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

Laura Zubulake, Author of “Zubulake's e-Discovery” – eDiscovery Trends

This is the fifth of the 2013 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends?
  2. If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Laura Zubulake.  Laura worked on Wall Street for 20 years in institutional equity departments and, in 1991, authored the book The Complete Guide to Convertible Securities Worldwide. She was the plaintiff in the Zubulake vs. UBS Warburg case, which resulted in several landmark opinions related to eDiscovery and counsel’s obligations for the preservation of electronically stored information. The December 2006 amendments to the Federal Rules of Civil Procedure were influenced, in part, by the Zubulake case. Last year, Laura published a book titled Zubulake’s e-Discovery: The Untold Story of my Quest for Justice, previously discussed on this blog here and she speaks professionally about eDiscovery topics and her experiences related to the case.

What are your general observations about LTNY this year and how it fits into emerging trends?

{Interviewed the second day of the show}  The crowd is similar in size to last year’s conference.  As always, there is that buzz of activity. There is a diversity of speakers and panels.  The Judge’s panels should be informative as usual,  Ted Olsen’s keynote was an interesting and different introduction to the conference.  I’m also looking forward to the Thursday Closing Plenary Address on cyber security by Mary Galligan from the FBI.  As far as trends are concerned, based on the agenda it is clear that information governance is becoming more of an important topic.  Cyber security is also more of a focus.    Next year, I think cyber security, information governance, and big data will continue to be trends.  I think that by next year, predictive coding will be less of a hot topic.

Speaking of predictive coding, if last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?

At this point, I think that predictive coding has moved along the learning curve. Personally, I like to use the word algorithms with regard to predictive coding.  For years, algorithms have been used in government, law enforcement, and Wall Street.  It is not a new concept.  I think there will be an increasing acceptance of using them.  A key to acceptance will be to get cases where both parties agree to use algorithms voluntarily (instead of being forced to use them) and both sides are comfortable with the results.

As for the next big thing, as I said earlier,  there will probably be increased attention on information governance.  As the eDiscovery industry matures, information governance will become more of a focus for corporations.  They will realize that, while they have legal obligations (with regard to electronic information), they also need to proactively manage that information. This will not only mitigate costs and risk but also leverage that information for business purposes.  So far, I have found the panel discussions regarding information governance to be most interesting.

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

My goal this past year was to publish my book.  Reviews have been  good and I’m very thankful for that – especially given that I worked on it for several years.  The feedback has been rewarding in two aspects.  First, those in the eDiscovery industry are appreciating the book, because they are getting the background story to the making of the precedents.  Second, and even more rewarding to me personally, are reactions from readers who are not in the in the industry and not familiar with eDiscovery.  They appreciate the human-interest side of the story.  There are two stories in the book.  The broader audience finds the legal story interesting, but finds the human-interest story compelling.  I am also encouraged that readers are recognizing my story is really more about information governance than eDiscovery.  It was my understanding of the value of information and desire to search for it that resulted in the eDiscovery opinions.  As I state in my book, Zubulake I was the most important opinion because it gave me the opportunity to search for information.

Going forward, I will continue to market the book, plan events to market it and work towards getting more reviews in what I would call the broader media, not just in eDiscovery or legal media outlets.  Another one of my goals for this year and next year is to get back into the workforce in the area of information governance.  I think my Wall Street background and eDiscovery experiences are a perfect combination for information governance.  I also hope to use my book as a platform for my job search.

Thanks, Laura, for participating in the interview!

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

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

10 Tips for LegalTech Vendors – eDiscovery Best Practices

We’ve mentioned Ralph Losey from Jackson Lewis several times on this blog, including last year’s thought leader interview at LegalTech New York and our interview with him again this year, which will be published on March 1.  We’re discussing another interesting article from Losey, but this time it’s Adam Losey.  His article 10 Tips for LegalTech Vendors, that appeared in Law Technology News has some interesting tips that all vendors (especially those exhibiting at trade shows) should bear in mind.  Here are his tips, along with some of my comments:

  1. Hand over the mouse. As Losey notes, “If you get time in front of potential clients to demonstrate a product, give them the mouse. Let attendees try your tools, with you serving as their guide.”  That sounds great in theory.  It has been my experience, however, that most attendees that stop by and request a demo are reluctant to “drive” right there at the show (believe me, I’ve offered).  Giving them the ability to “test drive” the product for free in their offices after the show tends to get a better response, in my experience.
  2. Add value. Losey advocates more “than just delivering high-quality work product and hyper-responsive client service”.  There are plenty of ways to do this.  For example, helping a client out by directing them to the right vendor that provides a service that you don’t can be just as helpful as the services that you provide for them.
  3. Be humble and keep innovating.  Especially in the ever-changing eDiscovery industry, it’s important to continue to adapt.  That doesn’t just mean offering the latest “buzzword” technology, it also means providing a mechanism for clients to request features and enhancements and addressing those within rollout updates.
  4. Don’t bad-mouth the competition.  Needless to say, you should never do that.  If a client or prospect asks you to compare your solution to another, it’s always best to point out what your solution does well, or what it offers that is unique, not what (you think) the competition does poorly.
  5. Share. In essence, Losey reiterates that here: “Show me why you are the best, not why everyone else is the worst.”  This enables eDiscovery practitioners to draw their own conclusions and share their knowledge with colleagues, which carries more weight than if it came from the vendor, who has a vested interest.
  6. Stop pushing unnecessary services.  Doing so may net a little more business in the short run, but can cost long-term business when the client becomes more educated and realizes that those costs are unnecessary and dumps you.  It’s better to be flexible enough to provide just the services the client needs – they will appreciate it and want to do business with you again.
  7. Leave the legal work to the lawyers.  The vendor’s responsibility is to provide the attorney information regarding the handling of ESI necessary to make an informed decision, not to make that decision for the attorney.
  8. Reach out to new lawyers.  Great point!  As Losey notes, new lawyers are the ones handling eDiscovery at most firms, so reaching out to them as law students is a great way to establish a foothold.
  9. Let me export a privilege log with a click.  I would extend this to production logs, exception logs, etc.  It should be a no-brainer to select the documents you want, the fields you want on the report, click a button and export to Excel.
  10. Let me kick the tires on a case for free.  Clients always understand an application better when working with their own data, as opposed to a demo database.  That’s why (shameless plug warning!) CloudNine offers a 100% No-Risk Trial Offer on OnDemand®, so that our clients can try it with their own data (even as much as 100 GB or more), at no risk.  What better way to get them to try your product?

So, what do you think?  How do your vendors stack up?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S. — Happy 84th Birthday, Dad!

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

Tom Gelbmann of Gelbmann & Associates, LLC – eDiscovery Trends

This is the third of the 2013 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends?
  2. If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Tom Gelbmann. Tom is Principal of Gelbmann & Associates, LLC.  Since 1993, Gelbmann & Associates, LLC has advised law firms and Corporate Law Departments to realize the full benefit of their investments in Information Technology.  Tom has also been co-author of the leading survey on the electronic discovery market, The Socha-Gelbmann Electronic Discovery Survey; in 2011 he and George Socha converted the Survey into Apersee, an online system for selecting eDiscovery providers and their offerings.  In 2005, he and George Socha launched the Electronic Discovery Reference Model project to establish standards within the eDiscovery industry – today, the EDRM model has become a standard in the industry for the eDiscovery life cycle.

What are your general observations about LTNY this year and how it fits into emerging trends?

{Interviewed the first morning of LegalTech}  The most notable trend I have seen to lead up to LegalTech is the rush to jump on the computer assisted review bandwagon.  There are several sessions here at the show related to computer assisted review.  In addition, many in the industry seem to have a tool now some are promoting it as an “easy” button.  There is no “easy” button and, if I can mention a plug for EDRM, that’s one of the things the Search group was concerned with, so the group published the Computer Assisted Review Reference Model (CARRM) (our blog post about CARRM here).

To help people understand what computer assisted review is all about: it’s great technology and, if well used, it can really deliver great results, save time and save money, but it has to be understood it’s a tool.  It’s not a substitute for a process.  The good news is the technology is helping and, as I have been seeing for years, the more technology is intelligently used, the more you can start to bend the cost curve down for electronic discovery.  So, what I think it has started to do and will continue to do is level off those costs on the right hand side of the model.

If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?

I think one of the “next big things” which has already started is the whole left side of the model which I would characterize as information governance.  Information governance is on the rise and a lot of people in the industry believe that information governance today might be where electronic discovery was in about 2005 or 2006.  We need a lot of understanding, standards and education on effective approaches to information governance because that’s really where the problems are.  There are significant expenditures by organizations trying to work with too much data and not being able to find their data.  Associated with that, will be technology that will help and I also anticipate a significant increase in consulting services to help organizations develop effective policies and procedures.  The consulting organizations that can get it right and communicate it effectively will be able to capitalize on this aspect of the market.  Related to that, from a preservation standpoint, we have been seeing more software tools to help with litigation hold as more organizations get serious about preservation.

Another big trend is education.  EDRM is involved with the programs at Bryan University and the University of Florida (Bill Hamilton deserves a lot of credit for what is happening there).  I think you are going to see that continue to expand as more universities and educational facilities will be providing quality programs in the area of electronic discovery and perhaps information governance along the way.

The last trend I want to mention is a greater focus on marketing.  From a provider’s standpoint, it seems that there has been a flood of announcements about organizations that have hired a new marketing director, either overall for a specific region (west coast, east coast, South America, etc.).  Marketing is really expanding in the community, so it seems that providers are realizing they really have to intelligently go after business.  I don’t believe we saw that level of activity even two or three years ago.

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

With regard to EDRM, we had a very productive mid-year meeting where we asked our participants to help us plan for the future of EDRM.  As a result, we came up with several changes we are immediately implementing. One change is that projects are going to be much smaller and shorter duration with as few as one to five people working on a particular item to get it done and get it out to the community more quickly for feedback.  One example of that which we discussed above is CARRM.  We just announced another project yesterday which was the Talent Task Matrix (our blog post about it here).  We already have 91 downloads of the diagram and 87 downloads of the spreadsheet in less than a day. The matrix was very good work done by a very small group of EDRM folks.  We also dropped the prices for EDRM participation and there are also going to be additional changes in terms of sponsorships and advertising, so we are changing as we are gearing up for our 10th year.

Also, we’re very excited about the additions we have made to Apersee in the last six months.  One addition is the calendar which we believe is the most comprehensive calendar around for eDiscovery events.  If it is happening in the eDiscovery world globally, it’s probably on the Apersee calendar.  For conferences and webinars, the participating organizations will be listed, with a link back to their profile within Apersee.  We are also tracking press releases related to eDiscovery, enabling users to view press releases chronologically and also see the press releases associated within organization to see what they have said about themselves through their press releases.  These are examples of what Apersee is doing to build the comprehensive view of eDiscovery organizations to show what is happening, what they are doing and what services and products they offer.

Thanks, Tom, for participating in the interview!

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

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

Brad Jenkins of CloudNine Discovery – eDiscovery Trends

This is the first of the 2013 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What are your general observations about LTNY this year and how it fits into emerging trends?
  2. If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?
  3. What are you working on that you’d like our readers to know about?

Today’s thought leader is Brad Jenkins of CloudNine Discovery.  Brad has over 20 years of experience as an entrepreneur, as well as 14 years leading customer focused companies in the litigation support arena. Brad also writes the Litigation Support Industry Blog, which covers news about litigation support and e-discovery companies’ funding activities, acquisitions & mergers and notable business successes. He has authored many articles on document management and litigation support issues, and has appeared as a speaker before national audiences on document management practices and solutions.  He’s also my boss!   🙂

What are your general observations about LTNY this year and how it fits into emerging trends?

Well, clearly the technology assisted review/predictive coding wave is the most popular topic here at the show.  I think I counted at least six sessions discussing the topic and numerous vendors touting their tools.  And, this blog covered it and the cases using quite a bit last year.  I’m sure you’ll hear that from a lot of the folks you’re interviewing.

Another trend that I’m seeing is integration of applications to make the discovery process more seamless, especially the integration of cloud-based collection and review applications.  We have an alliance with BIA and their TotalDiscovery legal hold and collection tool, which can export data into our review application, OnDemand®, which our clients are using quite successfully to collect data and move it along the process.  I think the “best of breed” approach between an application that’s focused on the left side of the EDRM model and one that’s focused on the right side is an approach that makes sense for a lot of organizations.

If last year’s “next big thing” was the emergence of predictive coding, what do you feel is this year’s “next big thing”?

I’m not sure that I see just one thing as the “next big thing”.  I certainly see the continued focus on integration of applications as one big thing.  Another big thing that I see is a broadening acceptance of technology assisted review from more than just predictive coding.  For example, clustering similar documents together can make review more efficient and more accurate and we provide that in OnDemand through our partnership with Hot Neuron’s Clustify™.

Perhaps the biggest thing that I see is education and adoption of the technology.  Many lawyers still don’t actively use the technology and don’t find the applications intuitive.  We’ve worked hard to make OnDemand easy to use, requiring minimal or no training.  A lot of vendors tout their products as easy to use, but we’re backing our claim with our free no risk trial of OnDemand that includes free data assessment, free native processing, free data load and free first month hosting for the first data set on any new OnDemand project.  We feel that we have a team of “Aces” and a hand full of aces is almost impossible to beat.  So, the free no risk trial reflects our confidence that clients that try OnDemand will embrace its ease-of-use and self-service features and continue to use it and us for their discovery needs.

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

In addition to our integration success with BIA, our partnership with Clustify and our free no risk trial, we’re also previewing the initial release of the mobile version of OnDemand.  The first mobile version will be designed for project administrators to add users and maintain user rights, as well as obtain key statistics about their projects.  It’s our first step toward our 2013 goal of making OnDemand completely platform independent and we are targeting a third quarter release of a new redesigned version of OnDemand that will support that goal.

Thanks, Brad, for participating in the interview!

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

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

Is 31,000 Missed Relevant Documents an Acceptable Outcome? – eDiscovery Case Law

It might be, if the alternative is 62,000 missed relevant documents.

Last week, we reported on the first case for technology assisted review to be completed, Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al, in which predictive coding was approved last April by Virginia State Circuit Court Judge James H. Chamblin.  Now, as reported by the ABA Journal (by way of the Wall Street Journal Law Blog), we have an idea of the results from the predictive coding exercise.  Notable numbers:

  • Attorneys “coded a sample of 5,000 documents out of 1.3 million as either relevant or irrelevant” to serve as the seed set for the predictive coding process,
  • The predictive coding “program turned up about 173,000 documents deemed relevant”,
  • The attorneys “checked a sample of about 400 documents deemed relevant by the computer program. About 80 percent were indeed relevant. The lawyers then checked a sample of the documents deemed irrelevant. About 2.9 percent were possibly relevant”,
  • Subtracting the 173,000 documents deemed relevant from the 1.3 million total document population yields 1,127,000 documents not deemed relevant.  Extrapolating the 2.9 percent sample of missed potentially relevant document to the rest of the documents deemed non relevant yields 32,683 potentially relevant documents missed.

“For some this may be hard to stomach,” the WSJ Law Blog says in the article. “The finding suggests that more than 31,000 documents may be relevant to the litigation but won’t get turned over to the other side. What if the smoking gun is among them?”

However, the defendants, in arguing for the use of predictive coding in this case, asserted that “manual review of the approximately two million documents at issue would be extremely costly while locating only about 60 percent of potentially relevant documents”.  Of course, the rise in popularity of technology assisted review is not only due to the cost savings but also the growing belief of increased accuracy over human review as concluded in the oft-cited Richmond Journal of Law and Technology white paper from Maura Grossman and Gordon Cormack, Technology-Assisted Review in e-Discovery can be More Effective and More Efficient than Exhaustive Manual Review.

Assuming that the defendants’ effectiveness estimate of manual review is reasonable, then it could be argued that more than 62,000 relevant documents could have been missed using manual review at a much higher cost for review.  While we don’t know what the actual number of missed documents would have been, it’s certainly fair to conclude that the predictive coding effort saved considerable review costs in this case with comparable, if not better, accuracy.

There will be several sessions at Legal Tech® New York 2013 starting tomorrow discussing aspects of predictive coding.  For a preview of LegalTech, click here.

So, what do you think?  What do you think of the results?  Please share any comments you might have or if you’d like to know more about a particular topic.

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