eDiscovery Daily Blog

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.