I did an interview recently with Andrew Bartholomew of e-Discovery Beat. I told him he could ask me anything, except for cases involving my law firm. Andrew put the audio of the entire interview online, and added an edited transcript of selections in two segments: part one and part two. Here are a couple of questions that you might find of interest, especially the first one about blogging, which I have been asked about a lot lately.
After last week’s difficult blog on random sampling, this one is an easy-breather. But, don’t worry, I try not to bore. The interview includes a zinger against all abusers of e-discovery. You know who I mean. All those caveman lawyers out there who abuse e-discovery as a blunt tool for extortion. They only use e-discovery to try to drive up the other side’s costs at every turn. They are not really looking for the truth. They will do or say anything to win a case, to make money for themselves. See: Judge David Waxse on Cooperation and Lawyers Who Act Like Spoiled Children.
E-discovery is a powerful tool for truth, a tool for justice. It can be dangerous in the wrong hands. We must all stand up, and stand together, to protect e-discovery from abusive bullies. That includes exercise of your First Amendment rights to free speech and free association. That is what our country is all about.
Bartholomew: How did you come to be such a prolific blogger? Where most blogs just skim the surface, your E-Discovery Team blog really dives deep into the issues.
Losey: When I first started doing this in 2006, the blog posts were shorter and I didn’t provide a whole lot of analysis. I was mainly talking about new cases. But after doing this every week for five-and-a-half years now, it has become second nature. I find that my writing evolves as my own understanding evolves.
I’m pretty opinionated at this point because I’ve been doing it so long. I have become the analysis and opinion guy in e-discovery. I don’t try to report on each new case that comes out. Occasionally, I’ll have someone send me an opinion say, for instance, by Judge Scheindlin right off the presses, and I like to rush out there and write something that’s kind of news oriented. But generally speaking I am more of an analysis and commentary kind of guy to help people think it through.
I try to help the profession by sharing the experience of my being a lawyer for 32 years and being an avid technology person my whole life. Being there in the field as a practicing attorney, I see what’s going on. I know what the fights are in the courtrooms. Based on that, I have a lot of source material and information that comes my way. I’m doing analysis anyway as part of my job, so it’s not that hard to share it and write it up on my blog.
Bottom-Line-Driven Proportional Review
Bartholomew: You mentioned e-discovery case-law. Are there any important case-law trends that you’re following at the moment?
Losey: I came out a few months ago on my blog and went public with something I’ve been doing internally at my law firms and that’s bottom-line-driven proportional review. This is something we try to do every chance we get in every case to make sure that our production responses are proportional to the value of the case. It is my way of trying to control what I think is the primary problem in e-discovery today, and that is runaway costs.
It involves estimation and budgeting and figuring out what a project is going to cost before you actually begin. It seems like basic common sense, but you’d be amazed. That is not the way things have been done in the past. There are still plenty of law firms around the country, if not the world, that begin production responses without a set budget or without having a clue what it’s going to cost them. We see examples of this in the case-law almost every day.
I’m now trying to promote this; just get the idea out there. Use your knowledge and experience about what things cost to make an estimate at the very beginning of a case as to what is proportionate to spend on e-discovery. I call it bottom-line-driven proportional review. I want everybody to be making this argument.
Who wouldn’t be in favor of proportionate expenses? Who wouldn’t be in favor of curtailing out-of-control e-discovery costs? Who wouldn’t be in favor of reasonability when it comes to e-discovery?
There are some people that wouldn’t be in favor of it. These are the people I want to stop, the people that use e-discovery as a weapon, not as a valid tool to obtain the truth in order to decide cases.
Predictive Coding and Human Review
Bartholomew: How does the advent of computer-assisted review, or predictive coding, stand to impact the role of human review in e-discovery going forward?
Losey: The need for human input is never going to go away. Predictive coding does not replace human reviewers. Having said that, it may reduce the number of human reviewers, but so will proportional discovery.
If you use predictive coding as a tool, but you don’t use it with a legal method, it’s worthless. A hammer doesn’t build a house. It takes a carpenter to use the hammer to build the house. Predictive coding is just the latest, coolest tool, but it doesn’t replace the carpenter.
It doesn’t replace all the other tools either. I’m the one that said keyword search is very limited, but the truth is, you still need keyword search. It’s still a very valuable and important tool. It’s just not the best tool. But it still needs to be used, and so do the human reviewers.
The other slogan I’m talking about right now is called hybrid (computer and human), multi-modal (many methods) computer-assisted review. This is what it’s all about. It’s having computers help us to do a faster, better, higher quality, yet less expensive, review. Basically it allows us to get more bang for our buck.
If you’re on a budget, you better be delivering the relevant documents within that budget. The best way to do that is with the latest tools; predictive coding is the latest tool. But it’s just a drop down menu on any good software review tool, along with concept review, the similarity feature where you’re grouping words using near de-duplication, as well as keyword search.
The foundation to all of these techniques is expert human review. The human input has become even more important with predictive coding because now you need to bring in experts at the beginning. You need to bring in the people who really know what’s relevant and what isn’t in order to train the computer and generate the seed-set. If anything, the latest predictive coding technologies have elevated the importance of the expert lawyer.
Bartholomew: Are there other issues or trends that we might be hearing about from you on your blogs or future presentations?
Losey: I’m going to continue to talk a lot about predictive coding and using technology because I really believe that the only way to get out of the mess we’re in of having too much information – a problem created by technology – is to use more technology. We have to fight fire with fire. I’m going to keep encouraging the law to use technology and the knowledge and intelligence we have in computers in order to do e-discovery – not only in an inexpensive way, but also in a quality way where you get the information you need.
The new trend I’ve been talking about is the growing importance of information science on the law. It’s one thing to have technology impact the law, but you must balance out the technology with the deep knowledge and real understanding that you can really only get from science. That’s the only way law is going to be able to use technology in an appropriate manner.
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