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.
Ralph,
That TAR vs CAR debate reminds me of a similar situation in Quebec where, back in 2001, the legislator enacted An Act to Establish a Legal Framework for Information Technology, which refers to “technology-based document”. That was (and still is) a departure from the use, elsewhere, of the notion of electronic document (e.g. the Personal Information Protection and Electronic Documents Act or any of the eCommerce Acts). IMHO, the idea behind the use of “technology” in this context is legitimate: the legislator does not intent to amend its laws with each new technology coming out or for the different types of technologies out there which are not “electronic”.
However, in the context of CAR, I say, why not cross the bridge when we get there? For the moment, the only assisted review I’ve heard of is computer-assisted. When a new technology, not relying on computers, comes out, we will find a name that is applicable to it… Until then, I will only care for CAR and leave the TAR preachers standing in ataraxy at their altar!
Amen…
“When a new technology, not relying on computers, comes out, we will find a name that is applicable to it…” I use a technology that does not rely on computers – it’s this comfy chair that I sit in. Even paper review is TAR when sitting in this technological chair which facilitates hour after hour of review. In other words, TAR is too broad, it’s CAR.
[…] Maura and Gordon have done in the field of technology assisted review (“TAR”), which, as I have noted before I prefer to call CAR (computer assisted review). There is room for more than one term to signify […]
Why is it either? There is not room for more than one term if one is all that is needed for a term of art. If we can’t yet just call it “discovery” and “review” after over half a decade under new rules for “ESI” the profession is in profound trouble. New buzz words won’t help us help the dinosaurs among us catch up to the current tools of the trade; such terms cause more ears to close than ever a mind they opened in this business. I say it’s time we (the kind of folks who follow this blog) just drop the “e”-vendor hype language hangover from “Y2K” days and get back to plain old discovery again.
The only new acronym that was ever needed was to have ESI discoverable as defined in the Rules. Lawyers should not let vendor technology marketing habits infect terms of art. It just confuses folks and causes arguments of the kind legal terms of art were invented to prevent. Which of course is what sales professionals do for a living; they confuse consumers over distinctions without differences to make a sale. I was taught that we lawyers were different than the three men in the tub. Why do we wish to participate in that vendor’s name game on any level?
What magic modern tool(s) one uses for review (be it a photocopier technology to share a copy with counsel and file one too, latent sematic indexing based text retrieval, or some other concept search and clustering tools with or without human feedback loops, or one of the many threading algorythems to batch docs for review in that fasion for efficiency) should not impact the name of the task at hand. Let us just call it “document review” again, please!
So long as the Supreme Court went through all the trouble to define “ESI” as a “document” in the Rules, that should be ’nuff said for any lawyer in the land! It’s just another document review, so long as you’ve read the definition of “document” in the rules.
While I’m on the soap box here, can’t we just call Ralph’s new site his suggested “Discovery Best Practices” site and begin to fix a bad trend? There must be some level of Dante’s hell for those who create new acronyms where none were ever really needed.
[…] you guess the most popular topic? Yup, computer assisted review, which many have taken to calling TAR, including Georgetown. It seems that most advanced practitioners in the country are like me and […]