e-Discovery Team ®

The initial response to the e-Discovery Team’s new website of best practices for attorneys, EDBP.com, has been great. We just went public with this collaborative project on September 30, 2012, and have already received a slew of good suggestions and comments. I will review some of them in future blogs, so join in now and send us your proposals. The party is just getting started, and for once I’m not talking about litigants.

Although we have not really started trying to promote EDBP outside of this blog, momentum is already building by word-of-mouth. Just this week the EDBP project received a strong endorsement from mister standards himself, Jason R. Baron. According to Jason’s crystal ball, standards and best practices are important to the future success of the legal profession. Without these guide-posts a dystopia may await us where justice is over-run by disruptive advances in technology and a flood of information.

On the Shoulders of Giants

Jason’s endorsement came at the end of a good webinar he participated in that was sponsored by Inside Counsel and FTI: Predictive Discovery: Taking Predictive Coding out of the “Black Box”. Joining Jason in this presentation were Joe Looby, Senior Managing Director of FTI Technology, and Daniel Slottje, Professor, Economist, and Statistician with Southern Methodist University. Professor Slottje is an experienced expert witness on statistical subjects and had an interesting perspective.

This was the third and last presentation in a three-part series on predictive coding, which you can still listen to for free after registering. The first two webinars in the series were: Survey Results: What Does Counsel Really Think About Predictive Coding? and Predictive Coding and the Meet and Confer: What Every Attorney Should Know. They featured Ari Kaplan, Barry Murphy, Joe Looby, David Horrigan and Edward Rippey. I listened to all of them and suggest you check them out.

I also recently listened to another good webinar by two of my favorites, Maura Grossman and Gordon Cormack called: Practitioner’s Guide to Statistical Sampling in E-Discovery. They even went deep into my current pet-issue, the impact of low prevalence rates on sample size. Maura also provided a new insight I had not heard before on proportionality constraints and sampling, especially where low yields are suggested. Although Gordon Cormack, the scientist of this dynamic duo, made a point of dissing bloggers who provide bad information on sampling, he later assured me he was talking about the other guys, not me. The blogosphere is such a crowded space these days. I do agree with him that you have to be careful about who and what you read and keep your critical thinking in tact.

Speaking of the blogosphere, check out a good one recently by another one of my favs, Monica Bay: Four Federal Judges Debate Four Ethical Issues at E-Discovery Summit. She reports on a conference by EDI (Electronic Discovery Institute) with some of the top judge experts speaking on predictive coding. Sadly, I have to avoid many such events these days. There is a cloud hanging over my head, and I already know all too well the negative side of Jason’s dystopia.

Listening to the presentation of leaders in the field, and staying in touch with their latest thoughts, are just a few of the ways I try to stay current with the best practices of my colleagues. I synthesize the thoughts and methods of others, as well as my own. For what I have come up with so far on review in general, and predictive coding in particular, see the Predictive Coding subpage of EDBP.

TAR v. CAR

Speaking of predictive coding, am I the only one who still prefers the acronym CAR (computer assisted review) over TAR (technology assisted review)? Should I just give up and go along with the current trend to say TAR, not CAR?

I had a semi-learned debate with Maura Grossman about this recently. She and Gordon popularized the TAR acronym in their now widely cited article, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, Richmond Journal of Law and Technology, Vol. XVII, Issue 3, Article 11 (2011). I wrote about it at the time the article was first published in The Information Explosion and a Great Article by Grossman and Cormack on Legal Search.

I endorsed the article, but not the phrase. Who would have guessed a year ago that the profession would start saying TAR all the time. CAR is such a nicer acronym, so much more suitable for analogies. How many files per hour can your review go?

I have heard some (not Maura) defend TAR by saying that the word computer is too limiting, that computers are just one type of technology used in legal review. Really? Not in my reviews. All the technologies used are various types of computers; actually, it is the software that runs on computers. Computers covers it. The world of legal search rests on computers, and it is computers, not turtles, all the way down. You do not have to broaden to the larger category of technology. But maybe I have overlooked some non-CPU technology? If so, please let me know (shredders do not count).

What, dear readers, do you think? Here is your chance to weigh in.

Come back from time to time to review the results.

Ball v. Jaar

Speaking of great debates, I urge you to take a look at the interesting dialogue in the commentary section of my last blog: NEWS FLASH: Surprise Ruling by Delaware Judge Orders Both Sides To Use Predictive Coding. Craig Ball, the Texan from New York who is no stranger to controversy, begins with a short critique of Vice Chancellor Laster’s dictate that the parties use a common review tool. Then the Canadian, KPMG Partner, Dominic Jaar, responds with a lengthy, well thought out defense of the Vice Chancellor’s actions. Dominic’s controversial advocacy for a single vendor platform hinges on a cooperative model that benefits clients. It is well worth reading, so is Dominic’s blog, IMED, where I see he uses the acronym CAR, not TAR. This is an open dialogue, and, like the EDBP, you are free to join in and leave your own comments.

While we are on a voting roll here, why not call for another show of cyber-hands. To participate you first need to read the mentioned NEWS FLASH about the new decision in EORHB, Inc., et al v. HOA Holdings, LLC,C.A. No. 7409-VCL (Del. Ch. Oct. 15, 2012). As one reader put it, this was a totally unpredictable predictive coding order. I predict this will be a close election, err, I mean vote, and readers may be evenly divided on this issue, with a slight majority going against the Vice Chancellor’s decision. Let’s find out. What do you think?

If you want to leave a comment on this single vendor discussion, you can leave it where Craig and Dominic started the comments, or you can really confuse folks and leave it here. Either way, this is a hot new topic that is going to be around for many more years to come.

Conclusion

Over the past few years technology over-achievers have unwittingly triggered a crises in our justice systems. Due to the amazingly swift advances in technology the current generation of lawyers cannot find the written evidence they need to prove their cases. It has been hidden in a collection of electronic on-off switches where there are more bits of data than there are stars in the Universe. Thank you very much scientists and engineers. You split the atom because you could without thinking about the consequences. There is a dark side to computation advances too. We are now drowning in a data deluge where justice is becoming harder and harder to obtain.

In a crisis like this, standards and best practices are critical for the legal profession to survive. We have to teach as many lawyers as possible how to find the electronic needles in the haystacks, and we have to do so as fast as possible. This is not just a nice option. It is a critical necessity for our civilization to maintain justice in the computer age. That is why the e-Discovery Team created the Electronic Discovery Best Practices project, EDBP.com. You should participate for the same reason. We cannot naively think vendors have super powers and will save the day for us. All they can do is help lawyers, and help educate lawyers.

But just because we are doing something important, something significant, or at least trying to, does not mean we should not enjoy ourselves in the process. As my online students at e-Discovery Team Training know: imagination and creativity are the friends of education, boredom is the enemy. The pursuit of truth and justice is a serious matter, but that does not mean there is no place for laughter. I would take another poll on that, but I know you all agree with that one.

This entry was posted on Sunday, October 28th, 2012 at 5:23 pm and is filed under Evidence, Forensic Exam, Lawyers Duties, Metadata, New Rules, Related Legal Webs, Review, Search, Spoliation/Sanctions, Technology. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.