This is the fifth installment of the article explaining the e-Discovery Team’s latest enhancements to electronic document review using Predictive Coding. Here are Parts One, Two, Three and Four. This series explains the nine insights behind the latest upgrade to version 4.0 and the slight revisions these insights triggered to the eight-step workflow. We have already covered five of the nine insights. In this installment we will cover the remaining four: GIGO & QC (Garbage In, Garbage Out) (Quality Control); SME (Subject Matter Expert); Method (for electronic document review); and, Software (for electronic document review). The last three: SME – Method – Software, are all parts of Quality Control.
GIGO & QC – Garbage In, Garbage Out & Quality Control
Garbage In, Garbage Out is one of the oldest sayings in the computer world. You put garbage into the computer and it will spit it back at you in spades. It is almost as true today as it was in the 1980s when it was first popularized. Smart technology that recognizes and corrects for some mistakes has tempered GIGO somewhat, but it still remains a controlling principle of computer usage.
The GIGO Wikipedia entry explains that:
GIGO in the field of computer science or information and communications technology refers to the fact that computers, since they operate by logical processes, will unquestioningly process unintended, even nonsensical, input data (“garbage in”) and produce undesired, often nonsensical, output (“garbage out”). … It was popular in the early days of computing, but applies even more today, when powerful computers can produce large amounts of erroneous information in a short time.
Wikipedia also pointed out an interesting new expansion of the GIGO Acronym, Garbage In, Gospel Out:
It is a sardonic comment on the tendency to put excessive trust in “computerized” data, and on the propensity for individuals to blindly accept what the computer says.
Now as to our insight: GIGO in electronic document review, especially review using predictive coding, is largely the result of human error on the part of the Subject Matter Expert. Of course, garbage can also be created by poor methods, where too many mistakes are made, and by poor software. But to really mess things up, you need a clueless SME. These same factors also create garbage (poor results) when used with any document review techniques. When the subject matter expert is not good, when he or she does not have a good grasp for what is relevant, and what is important for the case, then all methods fail. Keywords and active machine learning both depend on reliable attorney expertise. Quality control literally must start at the top of any electronic document review project. It must start with the SME.
If your attorney expert, your SME, has no clue, their head is essentially garbage. With that kind of bad input, you will inevitably get bad output. This happens with all usages of a computer, but especially when using predictive coding. The computer learns what you teach it. Teach it garbage and that is what it will learn. It will hit a target all right. Just not the right target. Documents will be produced, just not the ones needed to resolve the disputed issues. A poor SME makes too many mistakes and misses too many relevant documents because they do not know what is relevant and what is not.
A smart AI can correct for some human errors (perfection is not required). The algorithms can correct for some mistakes in consistency by an SME, and the rest of the review team, but not that many. In machine learning for document review the legal review robot now starts as a blank slate with no knowledge of the law or the case. They depend on the SME to teach them. Someday that may change. We may see smart robots who know the law and relevance, but we are not even near there yet. For now our robots are more like small children. They only know what you tell them, but they can spot inconsistencies in your message and they never forget.
Subject Matter Expert – SME
The predictive coding method can fail spectacularly with a poor expert, but so can keyword search. The converse of both propositions is also true. In all legal document review projects the SME needs to be an expert in scope of relevance, what is permitted discovery, what is relevant and what is not, what is important and what is not. They need to know the legal rules governing relevance backwards and forwards. They also need to have a clear understanding of the probative value of evidence in legal proceedings. This is what allows an attorney to know the scope of discoverable information.
If the attorney in charge does not understand the scope of discoverable information, does not understand probative value, then the odds of finding the documents important to a case are significantly diminished. You could look at a document with high probative value and not even know that it is relevant. This is exactly the concern of many requesting parties, that the responding party’s attorney will not understand relevance and discoverability the same way they do. That is why the first step in my recommended work flow is to Talk, which I also call Relevance Dialogues.
The kind of ESI communications with opposing counsel that are needed is not whining accusations or aggressive posturing. I will go into good talk versus bad talk in some detail when I explain the first step of our eight-step method. The point of the talking that should begin any document review project is to get a common understanding of scope of discoverable information. What is the exact scope of the request for production? Don’t agree the scope is proportionate? That’s fine. Agree to disagree and Talk some more, this time to the judge.
We have seen firsthand in the TREC experiments the damage that can be done by a poor SME and no judge to keep them inline. Frankly, it has been something of a shock, or wake up call, as to the dangers of poor SME relevance calling. Most of the time I am quite lucky in my firm of super-specialists (all we do is employment law matters) to have terrific SMEs. But I have been a lawyer for a long time. I have seen some real losers in this capacity in the past 36 years. I myself have been a poor SME in some of the 2015 TREC experiments. An example that comes to mind is when I had to be the SME on the subject of CAPTCHA in a collection of forum messages by hackers. It ended up being on the job training. I saw for myself how little I could do to guide the project. Weak SMEs make bad leaders in the world of technology and law.
There are two basic ways that discovery SMEs fail. First, there are the kind who do not really know what they are talking about. They do not have expertise in the subject matter of the case, or, let’s be charitable, their expertise is insufficient. A bullshit artist makes a terrible SME. They may fool the client (and they often do), but they do not fool the judge or any real experts. The second kind of weak SMEs have some expertise, but they lack experience. In my old firm we used to call them baby lawyers. They have knowledge, but not wisdom. They lack the practical experience and skills that can only come from grappling with these relevance issues in many cases.
That is one reason why boutique law firms like my own do so well in today’s competitive environment. They have the knowledge and the wisdom that comes from specialization. They have seen it before and know what to do.
An SME with poor expertise has a very difficult time knowing if a document is relevant or not. For instance, a person not living in Florida might have a very different understanding than a Floridian of what non-native plants and animals threaten the Florida ecosystem. This was Topic 408 in TREC 2016 Total Recall Track. A native Floridian is in a better position to know the important invasive species, even ones like vines that have been in the state for over a hundred years. A non-expert with only limited information may not know, for instance, that Kudzo vines are an invasive plant from Japan and China. (They are also rumored to be the home of small, vicious Kudzo monkeys!) What is known for sure is that Kudzu, Pueraria montana, smothers all other vegetation around, including tall trees (shown below). A native Floridian hates Kudzo as much as they love Manatees.
A person who has just visited Florida a few times would not know what a big deal Kudzo was in Florida during the Jeb Bush administration, especially in Northern Florida. (Still is.) They had probably never heard of it at all. They could see email with the term and have no idea what the email meant. It is obvious the native SME would know more, and thus be better positioned than a fake-SME, to determine Jeb Bush email relevance to non-native plants and animals that threaten the Florida ecosystem. By the way, all native Floridians especially hate pythons and a python eating one of our gators as shown below is an abomination.
Expertise is obviously needed for anyone to be a subject matter expert and know the difference between relevant and irrelevant. But there is more to it than information and knowledge. It also takes experience. It takes an attorney who has handled these kinds of cases many times before. Preferably they have tried a case like the one you are working on. They have seen the impact of this kind of evidence on judge and jury. An attorney with both theoretical knowledge and practical experience makes the best SME. Your ability to contribute subject matter expertise is limited when you have no practical experience. You might think certain ESI is helpful, when in fact, it is not; it has only weak probative value. A document might technically be relevant, but the SME lacks the experience and wisdom to know that matter is practically irrelevant anyway.
It goes without saying that any SME needs a good review team to back them up, to properly, consistently implement their decisions. In order for good leadership to be effective, there must also be good project management. Although this insight discussion features the role of the SME member of the review team, that is only because the importance of the SME was recently emphasized to us in our TREC research. In actuality all team members are important, not just the input from the top. Project management is critical, which is an insight already well-known to us and, we think, the entire industry.
Of course, no SME can be effective, no matter what their knowledge and experience, if they are not fair and honest. The SME must impartially seek and produce documents that are both pro and con. This is an ethics issue in all types of document review, not just predictive coding. In my experience corrupt SMEs are rare. But it does happen occasionally, especially when a corrupt client pressures their all too dependent attorneys. It helps to know the reputation for honesty of your opposing counsel. See: Five Tips to Avoid Costly Mistakes in Electronic Document Review – Part 2 that contains my YouTube video, E-DISCOVERY ETHICS (below).
Also see: Lawyers Behaving Badly: Understanding Unprofessional Conduct in e-Discovery, 60 Mercer L. Rev. 983 (Spring 2009); Mancia v. Mayflower Begins a Pilgrimage to the New World of Cooperation, 10 Sedona Conf. J. 377 (2009 Supp.).
If I were a lawyer behaving badly in electronic document review, like for instance the Qualcomm lawyers did hiding thousands of highly relevant emails from Broadcom, I would not use predictive coding. If I wanted to not find evidence harmful to my case, I would use negotiated keyword search, the Go Fish kind. See Part Four of this series.
I would also use linear review and throw an army of document review attorneys at it, with no one really knowing what the other was doing (or coding). I would subtly encourage project mismanagement. I would not pay attention. I would not supervise the rest of the team. I would not involve an AI entity, i.w.- active machine learning. I would also not use an attorney with search expertise, nor would I use a national e-discovery vendor. I would throw a novice at the task and use a local or start-up vendor who would just do what they were told and not ask too many questions.
A corrupt hide-the-ball attorney would not want to use a predictive coding method like ours. They would not want the relevant documents produced or logged that disclose the training documents they used. This is true in any continuous training process, not just ours. We do not produce irrelevant documents, the law prevents that and protects our client’s privacy rights. But we do produce relevant documents, usually in phases, so you can see what the training documents are.
A Darth Vader type hide-the-ball attorney would also want to avoid using a small, specialized, well-managed team of contract review lawyers to assist on a predictive coding project the review project. They would instead want to work with a large, distant army of contract lawyers. A small team of contract review attorneys cannot be brought into the con, especially if they are working for a good vendor. Even if you handicap them with a bad SME, and poor methods and software, they may still find a few of the damaging documents you do not want to produce. They may ask questions when they learn their coding has been changed from relevant to irrelevant. I am waiting for the next Qualcomm or Victor Stanley type case where a contract review lawyer blows the whistle on corrupt review practices. Qualcomm Inc. v. Broadcom Corp., No. 05-CV-1958-B(BLM) Doc. 593 (S.D. Cal. Aug. 6, 2007) (one honest low-level engineer testifying at trial blew the whistle on Qualcomm’s massive fraud to hide critical email evidence). I have heard stories from contract review attorneys, but the law provides them too little protection, and so far at least, they remain behind the scenes with horror stories.
One protection against both a corrupt SME, and SME with too little expertise and experience, is for the SME to be the attorney in charge of the trial of the case, or at least one who works closely with them so as to get their input when needed. The job of the SME is to know relevance. In the law that means you must know how the ultimate arbitrator of relevance will rule – the judge assigned to your case. They determine truth. An SME’s own personal opinion is important, but ultimately of secondary importance to that of the judge. For that reason a good SME will often vary on the side of over-expansive relevance because they know from history that is what the judge is likely to allow in this type of case.
This is a key point. The judges, not the attorneys, ultimately decide on close relevance and related discoverability issues. The head trial attorney interfaces with the judge and opposing counsel, and should have the best handle on what is or is not relevant or discoverable. A good SME can predict the judge’s rulings and, even if not perfect, can gain the judicial guidance needed in an efficient manner.
If the judge detects unethical conduct by the attorneys before them, including the attorney signing the Rule 26(g) response, they can and should respond harshly to punish the attorneys. See eg: Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 506 (D. Md. 2010). The Darth Vader’s of the world can be defeated. I have done it many times with the help of the presiding judge. You can too. You can win even if they personally attack both you and the judge. Been through that too.
Three Kinds of SMEs: Best, Average & Bad
When your project has a good SME, one with both high knowledge levels and experience, with wisdom from having been there before, and knowing the judge’s views, then your review project is likely to succeed. That means you can attain both high recall of the relevant documents and also high precision. You do not waste much time looking at irrelevant documents.
When an SME has only medium expertise or experience, or both, then the expert tends to err on the side of over-inclusion. They tend to call grey area documents relevant because they do not know they are unimportant. They may also not understand the new Federal Rules of Civil Procedure governing discoverability. Since they do not know, they err on the side of inclusion. True experts know and so tend to be more precise than rookies. The medium level SMEs may, with diligence, also attain high recall, but it takes them longer to get there. The precision is poor. That means wasted money reviewing documents of no value to the case, documents of only marginal relevance that would not survive any rational scrutiny of Rule 26(b)(1).
When the SME lacks knowledge and wisdom, then both recall and precision can be poor, even if the software and methods are otherwise excellent. A bad SME can ruin everything. They may miss most of the relevant documents and end up producing garbage without even knowing it. That is the fault of the person in charge of relevance, the SME, not the fault of predictive coding, nor the fault of the rest of the e-discovery review team.
If the SME assigned to a document review project, especially a project using active machine learning, is a high-quality SME, then they will have a clear grasp of relevance. They will know what types of documents the review team is looking for. They will understand the probative value of certain kids of documents in this particular case. Their judgments on Rule 26(b)(1) criteria as to discoverability will be consistent, well-balanced and in accord with that of the governing judge. They will instruct the whole team, including the machine, on what is true relevant, on what is discoverable and what is not. With this kind of top SME, if the software, methods, including project management, and rest of the review team are also good, then high recall and precision are very likely.
If the SME is just average, and is not sure about many grey area documents, then they will not have a clear grasp of relevance. It will be foggy at best. They will not know what types of documents the review team is looking for. SMEs like this think that any arrow that hits a target is relevant, not knowing that only the red circle in the center is truly relevant. They will not understand the probative value of certain kids of documents in this particular case. Their judgments on Rule 26(b)(1) criteria as to discoverability will not be perfectly consistent, and will end up either too broad or too narrow, and may not be in accord with that of the governing judge. They will instruct the whole team, including the machine, on what might be relevant and discoverable in an unfocused, vague, and somewhat inconsistent manner. With this kind of SME, if the software and methods, including project management, and rest of the review team are also good, and everyone is very diligent, high recall is still possible, but precision is unlikely. Still, the project will be unnecessarily expensive.
The bad SME has multiple possible targets in mind. They just search without really knowing what they are looking for. They will instruct the whole team, including the machine, on what might be relevant and discoverable in an confused, constantly shifting and often contradictory manner. Their obtuse explanations of relevance have little to do with the law, nor the case at hand. They probably have a very poor grasp of Rule 26(b)(1) Federal Rules of Civil Procedure. Their judgments on 26(b)(1) criteria as to discoverability, if any, will be inconsistent, imbalanced and sometimes irrational. This kind of SME probably does not even know the judge’s name, much less a history of their relevance rulings in this type of case. With this kind of SME, even if the software and methods are otherwise good, there is little chance that high recall or precision will be attained. An SME like this does not know when their search arrow has hit center of the target. In fact, it may hit the wrong target entirely. Their thought-world looks like this.
A document project governed by a bad SME runs a high risk of having to be redone because important information is missed. That can be a very costly disaster. Worse, a document important to the producing parties case can be missed and the case lost because of that error. In any event, the recall and precision will both be low. The costs will be high. The project will be confused and inefficient. Projects like this are hard to manage, no matter how good the rest of the team. In projects like this there is also a high risk that privileged documents will accidentally be produced. (There is always some risk of this in today’s high volume ESI world, even with a top-notch SME and review team. A Rule 502(d) Order should always be entered for the protection of all parties.)
Method and Software
The SME and his or her implementing team is just one part of the quality triangle. The other two are Method of electronic document review and Software used for electronic document review.
Obviously the e-Discovery Team takes Method very seriously. That is one reason we are constantly tinkering with and improving our methods. We released the breakthrough Predictive Coding 3.0 last year, following 2015 TREC research, and this year, after TREC 2016, we released version 4.0. You could fairly say we are obsessed with the topic. We also focus on the importance of good project management and communications. No matter how good your SME, and how good your software, if your methods are poor, so too will your results in most of your projects. How you go about a document review project, how you manage it, is all-important to the quality of the end product, the production.
The same holds true for software. For instance, if your software does not have active machine learning capacities, then it cannot do predictive coding. The method is beyond the reach of the software. End of story. The most popular software in the world right now for document review does not have that capacity. Hopefully that will change soon and I can stop talking around it.
Even among the software that has active machine learning, some are better than others. It is not my job to rank and compare software. I do not go around asking for demos and the opportunity to test other software. I am too busy for that. Everyone knows that I currently prefer to use EDR. It is the software by Kroll Ontrack that I use everyday. I am not paid to endorse them and I do not. (Unlike almost every other e-discovery commentator out there, no vendors pay me a dime.) I just share my current preference and pass along cost-savings to my clients.
I will just mention that the only other e-discovery vendor to participate with us at TREC is Catalyst. As most of my readers know, I am a fan of the founder and CEO, John Tredennick. There are several other vendors with good software too. Look around and be skeptical. But whatever you do, be sure the software you use is good. Even a great carpenter with the wrong tools cannot build a good house.
One thing I have found, that is just plain common sense, is that with good software and good methods, including good project management, you can overcome many weaknesses in SMEs, except for dishonesty or repeated, gross-negligence. The same holds true for all three corners of the quality triangle. Strength in one can, to a certain extent, make up for weaknesses in another.
To be continued …