e-Discovery and Poetry on a Rainy Night in Portugal

April 17, 2018

From time to time I like read poetry. Lately it has been the poetry of Billy Collins, a neighbor and famous friend. (He was the Poet Laureate of the United States from 2001 to 2003.) I have been reading his latest book recently, The Rain in Portugal. Billy’s comedic touches balance the heavy parts. Brilliant poet. I selected one poem from this book to write about here, The Five Spot, 1964. It has a couple of obvious e-discovery parallels. It also mentions a musician I had never heard of before, Roland Kirk, who was a genius at musical multi-tasking. Enjoy the poem and videos that follow. There is even a lesson here on e-discovery.

The Five Spot, 1964

There’s always a lesson to be learned
whether in a hotel bar
or over tea in a teahouse,
no matter which way it goes,
for you or against,
what you want to hear or what you don’t.

Seeing Roland Kirk, for example,
with two then three saxophones
in his mouth at once
and a kazoo, no less,
hanging from his neck at the ready.

Even in my youth I saw this
not as a lesson in keeping busy
with one thing or another,
but as a joyous impossible lesson
in how to do it all at once,

pleasing and displeasing yourself
with harmony here and discord there.
But what else did I know
as the waitress lit the candle
on my round table in the dark?
What did I know about anything?

Billy Collins

The famous musician in this poem is Rahsaan Roland Kirk (August 7, 1935[2] – December 5, 1977). Kirk was an American jazz multi-instrumentalist who played tenor saxophone, flute, and many other instruments. He was renowned for his onstage vitality, during which virtuoso improvisation was accompanied by comic banter, political ranting, and, as mentioned, the astounding ability to simultaneously play several musical instruments.

Here is a video of Roland Kirk with his intense multimodal approach to music.

One more Kirk video. What a character.

____

The Law

There are a few statements in Billy Collins’ Five Spot poem that have obvious applications to legal discovery, such as “There’s always a lesson to be learnedno matter which way it goes, for you or against, what you want to hear or what you don’t.” We are all trained to follow the facts, the trails, wherever they may lead, pro or con.

I do not say either pro or con “my case” because it is not. It is my client’s case. Clients pay lawyers for their knowledge, skill and independent advice. Although lawyers like to hear evidence that supports their client’s positions and recollections, after all it makes their job easier, they also want to hear evidence that goes against their client. They want to hear all sides of a story and understand what it means. They look at everything to craft a reasonable story for judge and jury.

Almost all cases have good and bad evidence on both sides. There is usually some merit to each side’s positions. Experienced lawyers look for the truth and present it in the best light favorable for their client. The Rules of Procedure and duties to the court and client require this too.

Bottom line for all e-discovery professionals is that you learn the lessons taught by the parties notes and documents, all of the lessons, good and bad.

The poem calls this a “… joyous impossible lesson in how to do it all at once, pleasing and displeasing yourself with harmony here and discord there.” All lawyers know this place, this joyless lesson of discovering the holes in your client’s case. As far as the “doing it all at once ” phrase, this too is very familiar to any e-discovery professional. If it is done right, at the beginning of a case, the activity is fast and furious. Kind of like a Roland Kirk solo, but without Roland’s exuberance.

Everybody knows that the many tasks of e-discovery must be done quickly and pretty much all at once at the beginning of a case: preservation notices, witness interviews, ESI collection, processing and review. The list goes on and on. Yet, in spite of this knowledge, most everyone still treats e-discovery as if they had bags of time to do it. Which brings me to another Billy Collins poem that I like:

BAGS OF TIME

When the keeper of the inn
where we stayed in the Outer Hebrides
said we had bags of time to catch the ferry,
which we would reach by traversing the causeway
between this island and the one to the north,

I started wondering what a bag of time
might look like and how much one could hold.
Apparently, more than enough time for me
to wonder about such things,
I heard someone shouting from the back of my head.

Then the ferry arrived, silent across the water,
at the Lochmaddy Ferry Terminal,
and I was still thinking about the bags of time
as I inched the car clanging onto the slipway
then down into the hold for the vehicles.

Yet it wasn’t until I stood at the railing
of the upper deck with a view of the harbor
that I decided that a bag of time
should be the same color as the pale blue
hull of the lone sailboat anchored there.

And then we were in motion, drawing back
from the pier and turning toward the sea
as ferries had done for many bags of time,
I gathered from talking to an old deckhand,
who was decked out in a neon yellow safety vest,

and usually on schedule, he added,
unless the weather has something to say about it.

Conclusion

Take time out to relax and let yourself ponder the works of a poet. We have bags of time in our life for that. Poetry is liable to make you a better person and a better lawyer.

I leave you with two videos of poetry readings by Billy Collins, the first at the Obama White House. He is by far my favorite contemporary poet. Look for some of his poems on dogs and cats. They are especially good for any pet lovers like me.

One More Billy Collins video.

 


TAR Course Expands Again: Standardized Best Practice for Technology Assisted Review

February 11, 2018

The TAR Course has a new class, the Seventeenth Class: Another “Player’s View” of the Workflow. Several other parts of the Course have been updated and edited. It now has Eighteen Classes (listed at end). The TAR Course is free and follows the Open Source tradition. We freely disclose the method for electronic document review that uses the latest technology tools for search and quality controls. These technologies and methods empower attorneys to find the evidence needed for all text-based investigations. The TAR Course shares the state of the art for using AI to enhance electronic document review.

The key is to know how to use the document review search tools that are now available to find the targeted information. We have been working on various methods of use since our case before Judge Andrew Peck in Da Silva Moore in 2012. After we helped get the first judicial approval of predictive coding in Da Silva, we began a series of several hundred document reviews, both in legal practice and scientific experiments. We have now refined our method many times to attain optimal efficiency and effectiveness. We call our latest method Hybrid Multimodal IST Predictive Coding 4.0.

The Hybrid Multimodal method taught by the TARcourse.com combines law and technology. Successful completion of the TAR course requires knowledge of both fields. In the technology field active machine learning is the most important technology to understand, especially the intricacies of training selection, such as Intelligently Spaced Training (“IST”). In the legal field the proportionality doctrine is key to the  pragmatic application of the method taught at TAR Course. We give-away the information on the methods, we open-source it through this publication.

All we can transmit by online teaching is information, and a small bit of knowledge. Knowing the Information in the TAR Course is a necessary prerequisite for real knowledge of Hybrid Multimodal IST Predictive Coding 4.0. Knowledge, as opposed to Information, is taught the same way as advanced trial practice, by second chairing a number of trials. This kind of instruction is the one with real value, the one that completes a doc review project at the same time it completes training. We charge for document review and throw in the training. Information on the latest methods of document review is inherently free, but Knowledge of how to use these methods is a pay to learn process.

The Open Sourced Predictive Coding 4.0 method is applied for particular applications and search projects. There are always some customization and modifications to the default standards to meet the project requirements. All variations are documented and can be fully explained and justified. This is a process where the clients learn by doing and following along with Losey’s work.

What he has learned through a lifetime of teaching and studying Law and Technology is that real Knowledge can never be gained by reading or listening to presentations. Knowledge can only be gained by working with other people in real-time (or near-time), in this case, to carry out multiple electronic document reviews. The transmission of knowledge comes from the Q&A ESI Communications process. It comes from doing. When we lead a project, we help students to go from mere Information about the methods to real Knowledge of how it works. For instance, we do not just make the Stop decision, we also explain the decision. We share our work-product.

Knowledge comes from observing the application of the legal search methods in a variety of different review projects. Eventually some Wisdom may arise, especially as you recover from errors. For background on this triad, see Examining the 12 Predictions Made in 2015 in “Information → Knowledge → Wisdom” (2017). Once Wisdom arises some of the sayings in the TAR Course may start to make sense, such as our favorite “Relevant Is Irrelevant.” Until this koan is understood, the legal doctrine of Proportionality can be an overly complex weave.

The TAR Course is now composed of eighteen classes:

  1. First Class: Background and History of Predictive Coding
  2. Second Class: Introduction to the Course
  3. Third Class:  TREC Total Recall Track, 2015 and 2016
  4. Fourth Class: Introduction to the Nine Insights from TREC Research Concerning the Use of Predictive Coding in Legal Document Review
  5. Fifth Class: 1st of the Nine Insights – Active Machine Learning
  6. Sixth Class: 2nd Insight – Balanced Hybrid and Intelligently Spaced Training (IST)
  7. Seventh Class: 3rd and 4th Insights – Concept and Similarity Searches
  8. Eighth Class: 5th and 6th Insights – Keyword and Linear Review
  9. Ninth Class: 7th, 8th and 9th Insights – SME, Method, Software; the Three Pillars of Quality Control
  10. Tenth Class: Introduction to the Eight-Step Work Flow
  11. Eleventh Class: Step One – ESI Communications
  12. Twelfth Class: Step Two – Multimodal ECA
  13. Thirteenth Class: Step Three – Random Prevalence
  14. Fourteenth Class: Steps Four, Five and Six – Iterative Machine Training
  15. Fifteenth Class: Step Seven – ZEN Quality Assurance Tests (Zero Error Numerics)
  16. Sixteenth Class: Step Eight – Phased Production
  17. Seventeenth Class: Another “Player’s View” of the Workflow (class added 2018)
  18. Eighteenth Class: Conclusion

With a lot of hard work you can complete this online training program in a long weekend, but most people take a few weeks. After that, this course can serve as a solid reference to consult during complex document review projects. It can also serve as a launchpad for real Knowledge and eventually some Wisdom into electronic document review. TARcourse.com is designed to provide you with the Information needed to start this path to AI enhanced evidence detection and production.

 


WHY I LOVE PREDICTIVE CODING: Making Document Review Fun Again with Mr. EDR and Predictive Coding 4.0

December 3, 2017

Many lawyers and technologists like predictive coding and recommend it to their colleagues. They have good reasons. It has worked for them. It has allowed them to do e-discovery reviews in an effective, cost efficient manner, especially the big projects. That is true for me too, but that is not why I love predictive coding. My feelings come from the excitement, fun, and amazement that often arise from seeing it in action, first hand. I love watching the predictive coding features in my software find documents that I could never have found on my own. I love the way the AI in the software helps me to do the impossible. I really love how it makes me far smarter and skilled than I really am.

I have been getting those kinds of positive feelings consistently by using the latest Predictive Coding 4.0 methodology (shown right) and KrolLDiscovery’s latest eDiscovery.com Review software (“EDR”). So too have my e-Discovery Team members who helped me to participate in TREC 2015 and 2016 (the great science experiment for the latest text search techniques sponsored by the National Institute of Standards and Technology). During our grueling forty-five days of experiments in 2015, and again for sixty days in 2016, we came to admire the intelligence of the new EDR software so much that we decided to personalize the AI as a robot. We named him Mr. EDR out of respect. He even has his own website now, MrEDR.com, where he explains how he helped my e-Discovery Team in the 2015 and 2015 TREC Total Recall Track experiments.

Bottom line for us from this research was to prove and improve our methods. Our latest version 4.0 of Predictive Coding, Hybrid Multimodal IST Method is the result. We have even open-sourced this method, well most of it, and teach it in a free seventeen-class online program: TARcourse.com. Aside from testing and improving our methods, another, perhaps even more important result of TREC for us was our rediscovery that with good teamwork, and good software like Mr. EDR at your side, document review need never be boring again. The documents themselves may well be boring as hell, that’s another matter, but the search for them need not be.

How and Why Predictive Coding is Fun

Steps Four, Five and Six of the standard eight-step workflow for Predictive Coding 4.0 is where we work with the active machine-learning features of Mr. EDR. These are its predictive coding features, a type of artificial intelligence. We train the computer on our conception of relevance by showing it relevant and irrelevant documents that we have found. The software is designed to then go out and find all other relevant documents in the total dataset. One of the skills we learn is when we have taught enough and can stop the training and complete the document review. At TREC we call that the Stop decision. It is important to keep down the costs of document review.

We use a multimodal approach to find training documents, meaning we use all of the other search features of Mr. EDR to find relevant ESI, such as keyword searches, similarity and concept. We iterate the training by sample documents, both relevant and irrelevant, until the computer starts to understand the scope of relevance we have in mind. It is a training exercise to make our AI smart, to get it to understand the basic ideas of relevance for that case. It usually takes multiple rounds of training for Mr. EDR to understand what we have in mind. But he is a fast learner, and by using the latest hybrid multimodal IST (“intelligently spaced learning“) techniques, we can usually complete his training in a few days. At TREC, where we were moving fast after hours with the Ã-Team, we completed some of the training experiments in just a few hours.

After a while Mr. EDR starts to “get it,” he starts to really understand what we are after, what we think is relevant in the case. That is when a happy shock and awe type moment can happen. That is when Mr. EDR’s intelligence and search abilities start to exceed our own. Yes. It happens. The pupil then starts to evolve beyond his teachers. The smart algorithms start to see patterns and find evidence invisible to us. At that point we sometimes even let him train himself by automatically accepting his top-ranked predicted relevant documents without even looking at them. Our main role then is to determine a good range for the automatic acceptance and do some spot-checking. We are, in effect, allowing Mr. EDR to take over the review. Oh what a feeling to then watch what happens, to see him keep finding new relevant documents and keep getting smarter and smarter by his own self-programming. That is the special AI-high that makes it so much fun to work with Predictive Coding 4.0 and Mr. EDR.

It does not happen in every project, but with the new Predictive Coding 4.0 methods and the latest Mr. EDR, we are seeing this kind of transformation happen more and more often. It is a tipping point in the review when we see Mr. EDR go beyond us. He starts to unearth relevant documents that my team would never even have thought to look for. The relevant documents he finds are sometimes completely dissimilar to any others we found before. They do not have the same keywords, or even the same known concepts. Still, Mr. EDR sees patterns in these documents that we do not. He can find the hidden gems of relevance, even outliers and black swans, if they exist. When he starts to train himself, that is the point in the review when we think of Mr. EDR as going into superhero mode. At least, that is the way my young e-Discovery Team members likes to talk about him.

By the end of many projects the algorithmic functions of Mr. EDR have attained a higher intelligence and skill level than our own (at least on the task of finding the relevant evidence in the document collection). He is always lighting fast and inexhaustible, even untrained, but by the end of his training, he becomes a search genius. Watching Mr. EDR in that kind of superhero mode is what makes Predictive Coding 4.0 a pleasure.

The Empowerment of AI Augmented Search

It is hard to describe the combination of pride and excitement you feel when Mr. EDR, your student, takes your training and then goes beyond you. More than that, the super-AI you created then empowers you to do things that would have been impossible before, absurd even. That feels pretty good too. You may not be Iron Man, or look like Robert Downey, but you will be capable of remarkable feats of legal search strength.

For instance, using Mr. EDR as our Iron Man-like suits, my e-discovery Ã-Team of three attorneys was able to do thirty different review projects and classify 17,014,085 documents in 45 days. See 2015 TREC experiment summary at Mr. EDR. We did these projects mostly at nights, and on weekends, while holding down our regular jobs. What makes this crazy impossible, is that we were able to accomplish this by only personally reviewing 32,916 documents. That is less than 0.2% of the total collection. That means we relied on predictive coding to do 99.8% of our review work. Incredible, but true.

Using traditional linear review methods it would have taken us 45 years to review that many documents! Instead, we did it in 45 days. Plus our recall and precision rates were insanely good. We even scored 100% precision and 100% recall in one TREC project in 2015 and two more in 2016. You read that right. Perfection. Many of our other projects attained scores in the high and mid nineties. We are not saying you will get results like that. Every project is different, and some are much more difficult than others. But we are saying that this kind of AI-enhanced review is not only fast and efficient, it is effective.

Yes, it’s pretty cool when your little AI creation does all the work for you and makes you look good. Still, no robot could do this without your training and supervision. We are a team, which is why we call it hybrid multimodal, man and machine.

Having Fun with Scientific Research at TREC 2015 and 2016

During the 2015 TREC Total Recall Track experiments my team would sometimes get totally lost on a few of the really hard Topics. We were not given legal issues to search, as usual. They were arcane technical hacker issues, political issues, or local news stories. Not only were we in new fields, the scope of relevance of the thirty Topics was never really explained. (We were given one to three word explanations in 2015, in 2016 we got a whole sentence!) We had to figure out intended relevance during the project based on feedback from the automated TREC document adjudication system. We would have some limited understanding of relevance based on our suppositions of the initial keyword hints, and so we could begin to train Mr. EDR with that. But, in several Topics, we never had any real understanding of exactly what TREC thought was relevant.

This was a very frustrating situation at first, but, and here is the cool thing, even though we did not know, Mr. EDR knew. That’s right. He saw the TREC patterns of relevance hidden to us mere mortals. In many of the thirty Topics we would just sit back and let him do all of the driving, like a Google car. We would often just cheer him on (and each other) as the TREC systems kept saying Mr. EDR was right, the documents he selected were relevant. The truth is, during much of the 45 days of TREC we were like kids in a candy store having a great time. That is when we decided to give Mr. EDR a cape and superhero status. He never let us down. It is a great feeling to create an AI with greater intelligence than your own and then see it augment and improve your legal work. It is truly a hybrid human-machine partnership at its best.

I hope you get the opportunity to experience this for yourself someday. The TREC experiments in 2015 and 2016 on recall in predictive coding are over, but the search for truth and justice goes on in lawsuits across the country. Try it on your next document review project.

Do What You Love and Love What You Do

Mr. EDR, and other good predictive coding software like it, can augment our own abilities and make us incredibly productive. This is why I love predictive coding and would not trade it for any other legal activity I have ever done (although I have had similar highs from oral arguments that went great, or the rush that comes from winning a big case).

The excitement of predictive coding comes through clearly when Mr. EDR is fully trained and able to carry on without you. It is a kind of Kurzweilian mini-singularity event. It usually happens near the end of the project, but can happen earlier when your computer catches on to what you want and starts to find the hidden gems you missed. I suggest you give Predictive Coding 4.0 and Mr. EDR a try. To make it easier I open-sourced our latest method and created an online course. TARcourse.com. It will teach anyone our method, if they have the right software. Learn the method, get the software and then you too can have fun with evidence search. You too can love what you do. Document review need never be boring again.

Caution

One note of caution: most e-discovery vendors, including the largest, do not have active machine learning features built into their document review software. Even the few that have active machine learning do not necessarily follow the Hybrid Multimodal IST Predictive Coding 4.0 approach that we used to attain these results. They instead rely entirely on machine-selected documents for training, or even worse, rely entirely on random selected documents to train the software, or have elaborate unnecessary secret control sets.

The algorithms used by some vendors who say they have “predictive coding” or “artificial intelligence” are not very good. Scientists tell me that some are only dressed-up concept search or unsupervised document clustering. Only bona fide active machine learning algorithms create the kind of AI experience that I am talking about. Software for document review that does not have any active machine learning features may be cheap, and may be popular, but they lack the power that I love. Without active machine learning, which is fundamentally different from just “analytics,” it is not possible to boost your intelligence with AI. So beware of software that just says it has advanced analytics. Ask if it has “active machine learning“?

It is impossible to do the things described in this essay unless the software you are using has active machine learning features.  This is clearly the way of the future. It is what makes document review enjoyable and why I love to do big projects. It turns scary to fun.

So, if you tried “predictive coding” or “advanced analytics” before, and it did not work for you, it could well be the software’s fault, not yours. Or it could be the poor method you were following. The method that we developed in Da Silva Moore, where my firm represented the defense, was a version 1.0 method. Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182, 183 (S.D.N.Y. 2012). We have come a long way since then. We have eliminated unnecessary random control sets and gone to continuous training, instead of train then review. This is spelled out in the TARcourse.com that teaches our latest version 4.0 techniques.

The new 4.0 methods are not hard to follow. The TARcourse.com puts our methods online and even teaches the theory and practice. And the 4.0 methods certainly will work. We have proven that at TREC, but only if you have good software. With just a little training, and some help at first from consultants (most vendors with bona fide active machine learning features will have good ones to help), you can have the kind of success and excitement that I am talking about.

Do not give up if it does not work for you the first time, especially in a complex project. Try another vendor instead, one that may have better software and better consultants. Also, be sure that your consultants are Predictive Coding 4.0 experts, and that you follow their advice. Finally, remember that the cheapest software is almost never the best, and, in the long run will cost you a small fortune in wasted time and frustration.

Conclusion

Love what you do. It is a great feeling and sure fire way to job satisfaction and success. With these new predictive coding technologies it is easier than ever to love e-discovery. Try them out. Treat yourself to the AI high that comes from using smart machine learning software and fast computers. There is nothing else like it. If you switch to the 4.0 methods and software, you too can know that thrill. You can watch an advanced intelligence, which you helped create, exceed your own abilities, exceed anyone’s abilities. You can sit back and watch Mr. EDR complete your search for you. You can watch him do so in record time and with record results. It is amazing to see good software find documents that you know you would never have found on your own.

Predictive coding AI in superhero mode can be exciting to watch. Why deprive yourself of that? Who says document review has to be slow and boring? Start making the practice of law fun again.

Here is the PDF version of this article, which you may download and distribute, so long as you do not revise it or charge for it.

 

 


Proportionality Φ and Making It Easy To Play “e-Discovery: Small, Medium or Large?” in Your Own Group or Class

November 26, 2017

Every judge who has ever struggled with discovery issues wishes that the lawyers involved had a better understanding of proportionality, that they had spent more time really thinking about how it applies to the requisites of their case. So too does every lawyer who, like me, specializes in electronic discovery. As Chief Justice Roberts explained in his 2015 Year-End Report on the Federal Judiciary on the new rules on proportionality:

The amended rule states, as a fundamental principle, that lawyers must size and shape their discovery requests to the requisites of a case. Specifically, the pretrial process must provide parties with efficient access to what is needed to prove a claim or defense, but eliminate unnecessary or wasteful discovery. The key here is careful and realistic assessment of actual need.

Proportionality and reasonableness arise from conscious efforts to realistically assess actual need. What is the right balance in a particular situation? What are the actual benefits and burdens involved? How can you size and shape your discovery requests to the requisites of a case?

There is more to proportionality than knowing the rules and case law, although they are a good place to start. Proportionality is a deep subject and deserves more than black letter law treatment. 2015 e-Discovery Rule Amendments: Dawning of the “Goldilocks Era” (e-discoveryteam.com, 11/11/15) (wherein I discuss proportionality, the Golden Ratio or perfect proportionality, aka Φ, which is shown in this graphic and much more, including the spooky “coincidence” at a CLE with Judge Facciola and the audience vote). Also see: Giulio Tononi, Phi Φ, a Voyage from the Brain to the Soul (Pantheon Books, 2012) (book I’m rereading now on consciousness and integrated information theory, another take on Phi Φ).

We want everyone in the field to think about proportionality. To be conscious of it, not just have information about it. What does proportionality really mean? How does it apply to the e-discovery tasks that you carry out every day? How much is enough? Too much? Too burdensome? Too little? Not enough? Why?

What is a reasonable effort? How do you know? Is there perfect proportionality? One that expresses itself in varying ways according to the facts and circumstances? Does Law follow Art? Is Law an Art? Or is it a Science? Is there Beauty in Law? In Reason? There is more to proportionality than meets the eye. Or is there?

Getting people to think about proportionality is one of the reasons I created the Hive Mind game that I announced in my blog last week: “e-Discovery: Small, Medium of Large?”

This week’s blog continues that intention of getting lawyers to think about proportionality and the requisites of their case. It concludes with a word document designed to make it easier to play along with your own group, class or CLE event. What discovery activities required in a Big Case are not necessary in a Small Case, or even a Medium Sized case? That is what requires thought and is the basis of the game.

Rules of Federal Procedure

Proportionality is key to all discovery, to knowing the appropriate size and shape of discovery requests in order to fit the requisites of a case. Reading the rules that embody the doctrine of proportionality is a good start, but just a start.  The primary rule to understand is how proportionality effects the scope of relevance as set forth in Rule 26(b)(1), FRCP:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

But you also need to understand how it impacts a lawyer’s overall duty to supervise a discovery request and response as set forth in Rule 26(g). See Rule 26(g)(1)(B)(iii), FRCP:

neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

Many other rules have concepts of proportionality either expressly or implicitly built in, including Rule 26(b)(2)(B) (not reasonably accessible); Rule 26(b)(2)(C)(i) (cumulative); Rule 1 (just, speedy and inexpensive), Rule 34, Rule 37(e), Rule 45.

Case Law

Reading the key cases is also a help, indispensable really, but reading what the judges say is not enough either. Still you need to keep up with the fast growing case law on proportionality. See for instance the fine collection by K&L Gates at: https://www.ediscoverylaw.com/?s=proportionality and the must-read, The Sedona Conference Commentary on Proportionality_May 2017. Here a few of my favorites cases:

  • In re Bard IVC Filters Prods. Liab. Litig., D. Ariz., No. MDL 15-02641-PHX DGC, 2016 U.S. Dist. LEXIS 126448 (D. Ariz. Sept. 16, 2016). In this must-read opinion District Judge David G. Campbell, who was the chair of the Rules Committee when the 2015 amendments were passed, takes both lawyers and judges to task for not following the new rules on proportionality. He then lays it all out in a definitive manner.
  • In re Takata Airbag Prods. Liab. Litig., No. 15-02599-CIV-Moreno, MDL No. 5-2599 (S.D. Fla. Mar. 1, 2016). Judge Moreno quotes Chief Justice Roberts’ comments in the 2015 Year-End Report that the newly amended Fed.R.Civ.Pro. 26 “crystalizes the concept of reasonable limits in discovery through increased reliance on the common-sense concept of proportionality.” 2015 Year-End Report on the Federal Judiciary.
  • Hyles v. New York City, No. 10 Civ. 3119 (AT)(AJP), 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016) (Judge Peck: “While Hyles may well be correct that production using keywords may not be as complete as it would be if TAR were used, the standard is not perfection, or using the “best” tool, but whether the search results are reasonable and proportional. Cf. Fed. R. Civ. P. 26(g)(1)(B)”)
  • Johnson v Serenity TransportationCase No. 15-cv-02004-JSC (N.D. Cal. October 28, 2016) (“… a defendant does not have discretion to decide to withhold relevant, responsive documents absent some showing that producing the document is not proportional to the needs of the case.”)
  • Apple Inc. v. Samsung Elecs. Co., No. 12-CV-0630-LHK (PSG), 2013 WL 4426512, 2013 U.S. Dist. LEXIS 116493 (N.D. Cal. Aug. 14, 2013) (“But there is an additional, more persuasive reason to limit Apple’s production — the court is required to limit discovery if “the burden or expense of the proposed discovery outweighs its likely benefit.” This is the essence of proportionality — an all-to-often ignored discovery principle. Because the parties have already submitted their expert damages reports, the financial documents would be of limited value to Samsung at this point. Although counsel was not able to shed light on exactly what was done, Samsung’s experts were clearly somehow able to apportion the worldwide, product line inclusive data to estimate U.S. and product-specific damages. It seems, well, senseless to require Apple to go to great lengths to produce data that Samsung is able to do without. This the court will not do.)
  • PTSI, Inc. v. Haley, 2013 WL 2285109 (Pa. Super. Ct. May 24, 2013) (“… it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant data.”)
  •  Kleen Products, LLC, et al. v. Packaging Corp. of Amer., et al.Case: 1:10-cv-05711, Document #412 (ND, Ill., Sept. 28, 2012).

Also see: The Top Twenty-Two Most Interesting e-Discovery Opinions of 2016 (e-discoveryteam.com, 1/2/17) (the following top ranked cases concerned proportionality: 20, 18, 17, 15, 14, 11, 6, 4, 3, 2, 1); and, Good, Better, Best: a Tale of Three Proportionality Cases – Part Two (e-discoveryteam.com 4/8/12) (includes collection of earlier case law).

Sedona Commentary

The Sedona Conference Commentary on Proportionality_May 2017 is more than a collection of case law. It includes commentary hashed out between competing camps over many years. The latest 2017 version includes Six Principles that are worthy of study. They can certainly help you in your own analysis of proportionality. The cited case law in the Commentary is structured around these six principles.

THE SEDONA CONFERENCE PRINCIPLES OF PROPORTIONALITY

Principle 1: The burdens and costs of preserving relevant electronically stored information should be weighed against the potential value and uniqueness of the information when determining the appropriate scope of preservation.

Principle 2: Discovery should focus on the needs of the case and generally be obtained from the most convenient, least burdensome, and least expensive sources.

Principle 3: Undue burden, expense, or delay resulting from a party’s action or inaction should be weighed against that party.

Principle 4: The application of proportionality should be based on information rather than speculation.

Principle 5: Nonmonetary factors should be considered in the proportionality analysis.

Principle 6: Technologies to reduce cost and burden should be considered in the proportionality analysis.

Conclusion

Proportionality is one of those deep subjects where you should think for yourself, but also be open and listen to others. It is possible to do both, although not easy. It is one of those human tricks that will make us hard to replace by smart machines. The game I have created will help you with that. Try out the Small, Medium or Large? proportionality game by filling out the online polls I created.

But, you can do more. You can lead discussions at your law firm, company, class or CLE on the subject. You can become an e-discovery proportionality Game-Master. You can find out the consensus opinion of any group. You can observe and create statistics of how the initial opinions change when the other game players hear each others opinions. That kind of group interaction can create the so-called hive-effect. People often change their mind until a consensus emerges.

What is the small, medium or large proportionality consensus of your group? Even if you just determine majority opinion, and do not go through an interactive exercise, you are learning something of interest. Plus, and here is the key thing, you are giving game players a chance to exercise their analytical skills.

To help you to play this game on your own, and lead groups to play it, I created a Word Document that you are welcome to use.

Game-Master-Hive-Mind_e-Discovery_Proportionality_GAME

 

 


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