eDiscovery Daily Blog

• January 30, 2012

Today is the start of LegalTech New York 2012 (LTNY) and, once again, eDiscoveryDaily is here to report about the latest eDiscovery trends being discussed at the show.  Over the next three days, we will provide a description each day of some of the sessions related to eDiscovery to give you a sense of the topics being covered.  If you’re in the New York area, I encourage you to check out the show – there are a number of sessions (both paid and free) available and over 225 exhibitors providing information on their products and services.

While at the show, we will also be interviewing several industry thought leaders to see what they think are the significant trends for 2012 and, which of those are evident at LTNY.  After the show, we will announce the series of thought leader interviews and identify when each will be published.  Mark your calendars!

Perform a “find” on today’s LTNY conference schedule for “discovery” and you’ll get 96 hits.  So, there is plenty to talk about!  Sessions in the main conference tracks include:

10:30 – 11:45 AM:

Standardizing Processes for Discovery Management and Cost Management – An ROI Your GC Can Appreciate

Given the significant potential expense of eDiscovery, in-house and outside counsel must understand the eDiscovery process in the context of not only legal compliance and the current matter, but also in the context of financial impact/cost. In short, eDiscovery must be approached and understood operationally and financially. This panel will address the standards of eDiscovery accountability, efficiency and effectiveness and explain how a repeatable business process applied in the context of eDiscovery can ensure that your future eDiscovery processes are treated just like any other critical business process.

Panelists are: Kim-An Hernandez, Senior Counsel, International Paper; Anthony Knaapen, Manager, Litigation Discovery, Chevron Corporation; Meagan Thwaites, Counsel—CRM Legal Department, Boston Scientific Corporation; and Kelli Brooks, National Partner-in-Charge, Evidence and Discovery Management, KPMG LLP.

Top Five Ethical Concerns for Lawyers in eDiscovery

This panel will address how lawyers can recognize and comply with their ethical obligations while:

• Carrying out and supervising the duty to preserve relevant ESI
• Meeting and conferring on eDiscovery issues with the appropriate level of transparency and cooperation
• Managing the processing, review, and production of large volumes of documents and information
• Employing sophisticated eDiscovery software tools and processes
• Accessing and using information from social media sites in discovery

Panelists are: Ruth Hauswirth, Director of Litigation and eDiscovery, Cooley LLP; Courtney Barton, Assistant General Counsel, AOL; M. James Daley, Partner, Daley & Fey LLP; Nicholas Jafarieh, Managing Director & Associate General Counsel, Sallie Mae.  Moderator: Maureen O'Neill, Vice President of Discovery Strategy, DiscoverReady LLC.

12:30 – 1:30 PM:

Plenary General Session: Man vs. Machine: The Promise/Challenge of Predictive Coding and Other Disruptive Technologies – OPEN TO ALL

In 2012, emerging, disruptive technologies are showing great promise for the legal field, specifically in the areas of classification, retention, and review. As technology begins to understand the context of information and apply it to the nuances of legal decisions in a way once exclusively reserved for the human practitioner, one must examine how technology will change the legal practices of today. This session will examine predictive coding as a case study of how disruptive technologies have both great promise and legitimate challenges in the Legal industry.

In one corner is the human document review process. While well-established it's also now clear that the eyes-on methodology can have significant drawbacks both in cost and accuracy. In the other corner, a range of artificial intelligence technologies have shown promise in enabling enhanced precision and recall through a range of Technology Assisted Review (TAR) features such as email threading, clustering, concept search and predictive coding. And yet, despite the buzz they haven't gained widespread adoption.

In this general session, vocal Jurist and U.S. Magistrate Judge for the Southern District of New York, Andrew Peck, leads a panel of industry experts that will discuss a range of hot topics including:

• How defensible are these TAR techniques and do they merely need to be more accurate than an average human document review?
• Are certain use cases (like internal investigations and governmental inquiries) better suited for the use of TAR tools?
• How does the role of attorneys change in a TAR workflow?

Panelists are: Maura R. Grossman, Counsel, Wachtell, Lipton, Rosen & Katz; Ralph C. Losey, Partner and National eDiscovery Counsel, Jackson Lewis, LLP; The Honorable Andrew J. Peck, Magistrate Judge, United States District Court for the Southern District of New York. Moderator: Dean Gonsowski, eDiscovery Counsel, Symantec.

2:00 – 3:15 PM:

eDiscovery Process Validation Sampling – How Confident Can You be in the Results of Your Software Assisted/Predictive Coding Process?

The increasing volume and complexity of electronically stored information and the cost of its review continues to drive the need for development of sophisticated, high-speed processing, indexing and categorization or "predictive coding" software in response to litigation and regulatory proceedings. Since the majority of these tools rely on sophisticated, proprietary algorithms that are frequently referred to as "black box" technologies, there has been a reluctance to exploit their expected productivity gains for fear that the results they produce may be challenged and rejected as not meeting the required standard of "reasonableness." Effective use of sampling can overcome this concern by demonstrating with a stated level of confidence that the system has produced results at least as consistent and reliable as those obtained by having attorneys review the documents without sophisticated technology support. This panel will cover testing, based on statistical sampling, the quality improvements and cost savings promised by "predictive coding" technology.

Panelists are: Marla Bergman, Director of eDiscovery, Goldman Sachs; Wayne Matus, Partner, National Leader – Information Law and Electronic Discovery Practice, Pillsbury Winthrop Shaw Pittman LLP; George J. Socha, Jr., Esq., President, Socha Consulting; Chris Paskach, Forensic Technology Services – Americas Network Leader, KPMG LLP.

Understanding Automated Review— Utilizing Predictive Coding as Part of Your Comprehensive Discovery Process

For more than two years, there has been an avalanche of commentary predicting how automated review and predictive coding tools can and will be used to supplement or replace current eDiscovery processes. Despite all of the buzz, relatively few corporations and law firms have taken the plunge into automated review. This reluctance may be based on the wide variety of service offerings and technologies that are being marketed as "automated" review tools, as well as a lack of transparency into how automated tools operate as part of a larger eDiscovery strategy.

During this session, leading practitioners and in-house counsel will demystify automated review. Key discussion points will include:

• An overview of the automated review and predictive coding landscape
• How to blend traditional manual document review with automated review options
• Practical approaches to automating the review process
• Snapshots into how leading companies are using automated review as part of their existing discovery processes

Panelists are: Craig Cannon, Assistant General Counsel & Discovery Counsel, Bank of America; Jessica Watts, AGC & Discovery Counsel, HP; Michele Spak, Senior Counsel, Office of General Counsel, Duke Energy; Matt Miller, SVP & IP Practice Group Leader, DiscoverReady LLC.

3:45 – 5:00 PM:

More Predictive than Ever – Predictive Coding, Predictive Costs and Predictive Outcomes – New Techniques to Manage and Control Electronic Discovery

Judge Andrew Peck cast 2011 as the year of predictive coding. A year on, where do we stand? Predictive coding is part of a paradigm shift in electronic discovery, as practitioners leverage technology and new business practices to regain control of the eDiscovery business process. Using case studies, the panelists will review some of the dramatic changes that are emerging in the conduct of eDiscovery. Sound predictive coding is fundamental to these changes. Other key changes include process transparency, early learning, rebalancing the outsourcing-insourcing mix, stratified review and statistically-driven quality assurance. Following Judge Peck, the panel will explore how predictive coding and emerging related business practices can be used to "`secure the just, speedy, and inexpensive` (Fed. R. Civ. P. 1) determination of cases in our eDiscovery world."

Panelists are: Daniel Garrie, Partner, Law & Forensics LLC (formerly FSRDG LLC) and General Counsel, Pulse; Kathryn Goetz, Vice President of Litigation Discovery, Qualcomm; Maura R. Grossman, Counsel,  Wachtell Lipton Rosen & Katz; Joel Mitnick, Partner and Co-Chair of eDiscovery Task Force, Sidley Austin LLP. Moderator: Warwick Sharp, Vice President, Equivio.

Evolution of eDiscovery Decisions in Financial Services

In the past, financial services eDiscovery cases and regulatory settlements focused on failure to retain records pursuant to the SEC, or the inability to access those records and produce them in a reasonable amount of time. Adverse inferences in Zubulake and Coleman v. Morgan Stanley come to mind, as well as widely publicized settlements between financial services companies and regulators. Join us for a lively discussion of the following topics:

• What should you anticipate in terms of future challenges with eDiscovery?
• Are you prepared for discovery related to audio files and social media?
• What can we anticipate, if anything, from Dodd-Frank rulemaking and its impact on the demands on your eDiscovery process?
• Will budget constraints on regulators impact the ability to negotiate terms of investigation, or even settlements?
• Will automated review reduce the burden on you or your clients, or will financial services litigants and regulators reject efforts to incorporate automated solutions into the eDiscovery process?

Panelists are: Tom Shpetner, Director of Equities Compliance – Americas, RBC Capital Markets; Glenn MacFarlane, Executive Director, eDiscovery, JPMorgan Chase; Amy Hinzmann, SVP & Financial Services Practice Group Leader, DiscoverReady LLC.

In addition to these, there are other eDiscovery-related sessions today.  For a complete description for all sessions today, click here.

I always promise this, but always seem to get too busy to deliver, but I’m bound and determined to make good on my promise this year: eDiscoveryDaily will also be “tweeting” periodically throughout LTNY, so feel free to check out our updates at twitter.com/Cloud9Discovery.

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