There are many things that we wish we could see happen in the eDiscovery world this coming year, but are unlikely to happen as quickly as we would like. Here are my top five wishes.
As much as I would love to see parties cooperate I don’t think this is likely to happen any time soon. The “Hide the Ball” mentality is too deeply ingrained in our profession. Being the zealous advocate is a way of life. Cooperating to figure out eDiscovery is a double whammy – first the cooperating doesn’t come naturally, as mentioned above and second, it requires lawyers to know what is going on in eDiscovery, which most lawyers don’t. I don’t want to make a blanket statement that lawyers don’t know eDiscovery, but it’s true – most of them don’t.
I’m going out on a limb here, but I clearly see it as a generational gap or issue. Those who understand eDiscovery well grew up using computers and didn’t have to learn how to use them as adults. I think that for cooperation to happen on a natural basis and not on a judicially forced basis lawyers are going to have to grow up, literally – it’ll be the “20 something” lawyers that will lead this charge.
What this means is we won’t see cooperation happen easily or quickly in 2013 – it’ll come later in this decade. That said, I wish we would see more cooperation in eDiscovery – it would lead to less unnecessary fights (i.e. motion practice) and less, needlessly spent, dollars going out the door!
Parties Come Adequately Prepared to a 26(f) Meet & Confer
I would absolutely love it if both parties came prepared to a 26(f) meet & confer so that there could actually be a meaningful discussion and both parties could come to an agreement about the details that will eventually become an ESI agreement. I’ve seen too many times where one party comes prepared to discuss details about certain things like custodians of interest, data to collect, data not to collect, data to process, data not to process, date ranges, key words (more on that in a minute), and a whole host of other useful topics.
Unfortunately, it is RARE that both parties come to the table prepared to discuss these details. RARER still is the meet & confer where BOTH parties have looked at the data to even see if what is there is helpful, how much data there is, how much data is likely to be useful or dispositive, etc. (the list goes on).
These meetings would go smoother and result in fewer motions if both parties 1) came prepared, 2) had looked at the data, 3) had done a little preliminary exploring of the data, and 4) most of all, come into the meeting with a cooperative attitude (see above); but these things aren’t likely to happen. There are too many lawyers who look at it as a required, one time meeting. It isn’t; it is a mechanism that dictates what the parties must discuss and those discussions may happen over a series of meetings where the parties to come to an agreement about how to handle eDiscovery (and then document that agreement).
Lawyers will begin to come to meet & confer meetings prepared, but it will take a lot longer than 2013 for both parties to come to this type of meeting adequately prepared for a fruitful discussion and agreement.
Doc Reviewers Going Away
One of the most frequent questions I hear with regard to technology assisted review is whether document review is going away. The answer is no, document review isn’t going away anytime soon; but the type of document review being done will change. Does this mean document reviewers will be going away? No, I don’t think so. It does mean that the type of document review will be much more focused and specific rather than a linear review of reviewing one document after another with no rhyme or reason for the batching. The way document review is organized will change with the various software tools available. Document reviews will be more organized, which means document reviews won’t take as long and not as many documents will need to be reviewed.
With technology assisted review and predictive coding tools, document reviews will require far fewer documents to be reviewed and these tools will require a higher level of document review by subject matter experts. Whether these subject matter experts are at a law firm or a review firm, they will still be needed – AND, more importantly, they will be much more valued than commodity document reviewers are valued today.
As I’ve said before in other articles and blogs, no one goes to law school to become a document reviewer, they go to law school to be a lawyer. Using the software tools available will focus the document review that needs to happen in a way that requires lawyer skills. That means document review (and document reviewers) won’t be going away in 2013 or any time soon, but what these lawyers are reviewing and how they are reviewing documents will change for the better.
Keyword Search Disappears as the Primary Culling Mechanism
With the more frequent use of technology assisted review tools, will that mean keyword search disappears as the culling mechanism of choice? I wish! Although I have been in the camp of using technology assisted review without ANY keyword culling for the last ten years, I realize that most lawyers aren’t ready for this leap yet – most lawyer’s keyword search and TAR reality is much different. Most lawyers are wedded to the simplicity (and seeming security) of using keyword search. Lawyers choose keywords, they run them on the data, and whatever is pulled back in those search results gets reviewed. Seems simple. Except that most keyword searching is done in a vacuum, not in an iterative fashion, and most certainly not by looking at the data first, which would be the most useful way of deriving keywords or concepts to cull data (in or out).
No court ever approved the use of keyword searches — lawyers just did it. Lawyers were used to searching in Lexis Nexis,Westlaw, and then in AOL, Netscape, and then Google and other search engines. So the next step seemed natural: use keyword searches to locate documents of interest, documents that could be relevant, and documents that should be kept out of the document review. Unfortunately, keyword search can be a very inefficient and ineffective way of culling documents. Can it be efficient or effective? Keyword search can absolutely be a defensible way to cull documents efficiently and effectively. Keyword search, if done iteratively or if combined with other search methods, can be an effective and efficient method to cull documents, Using keyword search can also be a good double-check on your search expectations. Keyword search won’t disappear in 2013, and it won’t disappear completely for a long time after 2013, but the use of other search methodologies will squeeze it out of the first place as a culling method in the next 3-5 years.
Widespread Technology Assisted Review (TAR) Adoption
I have heard many excuses why lawyers aren’t willing to use technology assisted review – it’s too expensive, the courts haven’t approved it, I have to review each document, I have to have eyes on every document – the list goes on. But now courts have approved it – 2012 was the year of technology assisted review cases; starting with Da Silva Moore and ending with EOHRB v. HOA Holdings (or more memorable than all those letters, “Hooters”). In these cases the judges all said it was okay to use technology assisted review because it was better than human review or in the case of Hooters, even demanded the parties use TAR or show cause why they shouldn’t use TAR.
But has all of this court approval started an avalanche of widespread TAR adoption? No, not yet. There is still a lot of reluctance to use it for a few reasons: 1) lawyers don’t quite want to rely on statistics rather than review documents; 2) lawyers don’t quite want to give up (the illusion of) reviewing every document yet; and 3) lawyers aren’t quite sure what they can do with the results of the machine learning gained by using predictive coding; 4) lawyers see the cost of TAR software as a stumbling block, depending on the licensing model for the TAR software; and 5) most importantly, lawyers don’t want to disclose all of the coding calls made on the training set.
In the predictive coding protocol used in Da Silva Moore and other cases (Global Aerospace and Actos Products), the parties agreed to disclose the coding decisions made on the entire training set (except for privileged documents). I’ve heard more reluctance from lawyers on this point alone, than any other objection to use TAR. No one wants to disclose nonresponsive documents if they don’t have to. No one wants to disclose their case strategy this way. This reluctance, more than anything else, is keeping lawyers from using TAR on a widespread basis.
Although there are practical ways around each of the objections listed above, I think there are many low risk ways of starting to use TAR on cases so that lawyers can get an understanding of how the technology works and how to best deploy it. One of those low risk ways of using TAR tools is to use it to prioritize your review rather than use it to cull documents out of the review. For 2013, some lawyers may be ready to use it to cull documents from their review, but most will be willing to use it to prioritize their review this coming year. While I would love for everyone to use TAR on every single case, I think lawyers will be dipping their toes in the TAR pond rather than jumping into the deep end in 2013.
As with any changes in the legal market, these things will happen slowly unless something, like sanctions or adverse inferences, forces it to happen more quickly. While I would love nothing more than to see all of these things happen in 2013, I think it will take a little longer than 2013 for these things to happen!