Judge Goes Where Angels Fear To Tread: Tells the Parties What Keyword Searches to Use

June 24, 2018

John Facciola was one of the first e-discovery expert judges to consider the adequacy of a producing parties keyword search efforts in United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008). He first observed that keyword search and other computer assisted legal search techniques required special expertise to do properly. Everyone agrees with that. He then reached an interesting, but still somewhat controversial conclusion: because he lacked such special legal search expertise, and knew full well that most of the lawyers appearing before him did too, that he could not properly analyze and compel the use of specific keywords without the help of expert testimony. To help make his point he paraphrased Alexander Pope‘s famous line from An Essay on Criticism: “For fools rush in where angels fear to tread.

Here are the well-known words of Judge Facciola in O’Keffe (emphasis added):

As noted above, defendants protest the search terms the government used.[6]  Whether search terms or “keywords” will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics. See George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System Adapt?; 13 Ricn. J.L. & TECH. 10 (2007). Indeed, a special project team of the Working Group on Electronic Discovery of the Sedona Conference is studying that subject and their work indicates how difficult this question is. See The Sedona Conference, Best Practices Commentary on the Use of Search and Information Retrieval, 8 THE SEDONA CONF. J. 189 (2008).

Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman and requires that any such conclusion be based on evidence that, for example, meets the criteria of Rule 702 of the Federal Rules of Evidence. Accordingly, if defendants are going to contend that the search terms used by the government were insufficient, they will have to specifically so contend in a motion to compel and their contention must be based on evidence that meets the requirements of Rule 702 of the Federal Rules of Evidence.

Many courts have followed O’Keffe, even though it is a criminal case, and declined to step in and order specific searches without expert input. See eg. the well-known patent case, Vasudevan Software, Inc. v. Microstrategy Inc., No. 11-cv-06637-RS-PSG, 2012 US Dist LEXIS 163654 (ND Cal Nov 15, 2012). The opinion was by U.S. Magistrate Judge Paul S. Grewal, who later became the V.P. and Deputy General Counsel of Facebook. Judge Grewal wrote:

But as this case makes clear, making those determinations often is no easy task. “There is no magic to the science of search and retrieval: only mathematics, linguistics, and hard work.”[9]

Unfortunately, despite being a topic fraught with traps for the unwary, the parties invite the court to enter this morass of search terms and discovery requests with little more than their arguments.

More recently, e-discovery expert Judge James Francis addressed this issue in Greater New York Taxi Association v. City of New York, No. 13 Civ. 3089 (VSB) (JCF) (S.D.N.Y. Sept. 11, 2017) and held:

The defendants have not provided the necessary expert opinions for me to assess their motion to compel search terms. The application is therefore denied. This leaves the defendants with three options: “They can cooperate [with the plaintiffs] (along with their technical consultants) and attempt to agree on an appropriate set of search criteria. They can refile a motion to compel, supported by expert testimony. Or, they can request the appointment of a neutral consultant who will design a search strategy.”[10] Assured Guaranty Municipal Corp. v. UBS Real Estate Securities Inc., No. 12 Civ. 1579, 2012 WL 5927379, at *4 (S.D.N.Y. Nov. 21, 2012).

I am inclined to agree with Judge Francis. I know from daily experience that legal search, even keyword search, can be very tricky, depends on many factors, including the documents searched. I have spent over a decade working hard to develop expertise in this area. I know that the appropriate searches to be run depends on experience and scientific, technical knowledge on information retrieval and statistics. It also depends on tests of proposed keywords; it depends on sampling and document reviews; it depends on getting your hands dirty in the digital mud of the actual ESI. It cannot be done effectively in the blind, no matter what your level of expertise. It is an iterative process of trial and errors, false positives and negatives alike.

Enter a Judge Braver Than Angels

Recently appointed U.S. Magistrate Judge Laura Fashing in Albuquerque, New Mexico, heard a case involving a dispute over keywords. United States v. New Mexico State University, No. 1:16-cv-00911-JAP-LF, 2017 WL 4386358 (D.N.M. Sept. 29, 2017). It looks like the attorneys in the case neglected to inform Judge Fashing of United States v. O’Keefe. It is a landmark case in this field, yet was not cited in Judge Fashing’s order. More importantly, Judge Fashing did not take the advice of O’Keefe, nor the many cases that follow it. Unlike Judge Facciola and his angels, she told the parties what keywords to use, even without input from experts.

The New Mexico State University opinion did, however, cite to two other landmark cases in legal search, William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 135 (S.D.N.Y. 2009) by Judge Andrew Peck and Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. May 29, 2008) by Judge Paul Grimm. Judge Fashing held in New Mexico State University:

This case presents the question of how parties should search and produce electronically stored information (“ESI”) in response to discovery requests. “[T]he best solution in the entire area of electronic discovery is cooperation among counsel.” William A. Gross Const. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 135 (S.D.N.Y. 2009). Cooperation prevents lawyers designing keyword searches “in the dark, by the seat of the pants,” without adequate discussion with each other to determine which words would yield the most responsive results. Id.

While keyword searches have long been recognized as appropriate and helpful for ESI search and retrieval, there are well-known limitations and risks associated with them, and proper selection and implementation obviously involves technical, if not scientific knowledge.

* * *

Selection of the appropriate search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented.

Id. (quoting Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260, 262 (D. Md. May 29, 2008)).

Although NMSU has performed several searches and produced thousands of documents, counsel for NMSU did not adequately confer with the United States before performing the searches, which resulted in searches that were inadequate to reveal all responsive documents. As the government points out, “NMSU alone is responsible for its illogical choices in constructing searches.” Doc. 117-1 at 8. Consequently, which searches will be conducted is left to the Court.

Judges Francis, Peck and Facciola

Judge Laura Fashing had me in the quote above until the final sentence. Up till then she had been wisely following the four great judges in this area, Facciola, Peck, Francis and Grimm. Then in the next several paragraphs she rushes in to specify what search terms should be used for what categories of ESI requested. Why should the Court go ahead and do that without expert advice? Why not wait? Especially since Judge Fashing starts her opinion by recognizing the difficulty of the task, that “there are well-known limitations and risks associated with them [keyword searches], and proper selection and implementation obviously involves technical, if not scientific knowledge.” Knowing that, why was she fearless? Why did she ignore Judge Facciola’s advice? Why did she make multiple detailed, technical decisions on legal search, including specific keywords to be used, without the benefit of expert testimony? Was that foolish as several judges have suggested, or was she just doing her job by making the decisions that the parties asked her to make?

Judge Fashing recognized that she did have enough facts to make a decision, much less expert opinions based on technical, scientific knowledge, but she went ahead and ruled anyway.

Although NMSU argues that the search terms proposed by the government will return a greater number of non-responsive documents than responsive documents, this is not a particular and specific demonstration of fact, but is, instead, a conclusory argument by counsel. See Velasquez, 229 F.R.D. at 200. NMSU’s motion for a protective order with regard to RFP No. 8 is DENIED.

NMSU will perform a search of the email addresses of all individuals involved in salary-setting for Ms. Harkins and her comparators, including Kathy Agnew and Dorothy Anderson, to include the search terms “Meaghan,” “Harkins,” “Gregory,” or “Fister” for the time period of 2007-2012. If this search results in voluminous documents that are non-responsive, NMSU may further search the results by including terms such as “cross-country,” “track,” “coach,” “salary,” “pay,” “contract,” or “applicants,” or other appropriate terms such as “compensation,” which may reduce the results to those communications most likely relevant to this case, and which would not encompass every “Meaghan” or “Gregory” in the system. However, the Court will require NMSU to work with the USA to design an appropriate search if it seeks to narrow the search beyond the four search terms requested by the United States.

Judge Fashing goes on to make several specific orders on what to do to make a reasonable effort to find relevant evidence:

NMSU will conduct searches of the OIE databases, OIE employee’s email accounts, and the email accounts of all head coaches, sport administrators, HR liaisons working within the Athletics Department, assistant or associate Athletic Directors, and/or Athletic Directors employed by NMSU between 2007 and the present. The USA suggests that NMSU conduct a search for terms that are functionally equivalent to a search for (pay or compensate! or salary) and (discriminat! or fair! or unfair!). Doc. 117-1 at 13. If NMSU cannot search with “Boolean” connectors as suggested, it must search for the terms “pay” or “compensate” or “salary” and “discriminate” or “fair” or “unfair” and the various derivatives of these terms (for example the search would include “compensate” and “compensation”). The parties are to work together to determine what terms will be used to search these databases and email accounts.

Judge Laura Fashing hangs her hat on cooperation, but not on experts. She concludes her order with the following admonishment:

The parties are reminded that:

Electronic discovery requires cooperation between opposing counsel and transparency in all aspects of preservation and production of ESI. Moreover, where counsel are using keyword searches for retrieval of ESI, they at a minimum must carefully craft the appropriate keywords, with input from the ESI’s custodians as to the words and abbreviations they use, and the proposed methodology must be quality control tested to assure accuracy in retrieval and elimination of “false positives.” It is time that the Bar—even those lawyers who did not come of age in the computer era—understand this.

William A. Gross Const. Assocs., Inc., 256 F.R.D. at 136.

Conclusion

Of course I agree with Judge Fashing’s concluding reminder to the parties. Cooperation is key, but so is expertise. There is a good reason for the fear felt by Facciola’s angels. They wisely  knew that they lacked the necessary technical, scientific knowledge for the proper selection and implementation of keyword searches. I only wish that Judge Fashing’s order had reminded the parties of this need for experts too. It would have made her job much easier and also helped the parties. Sometimes the wisest thing to do is nothing, at least not until you have more information.

There is widespread agreement among legal search experts on such simplistic methods as keyword search. They would have helped. The same holds true on advanced search methods, such as active machine learning (predictive coding), at least among the elite. See TARcourse.com. There is still some disagreement on TAR methods, especially when you include the many pseudo experts out there. But even they can usually agree on keyword search methods.

I urge the judges and litigants faced with a situation like Judge Fashing had to deal with in New Mexico State University, to consider the three choices set out by Judge Francis in Greater New York Taxi Association:

  1. Cooperation with the other side and their technical consultants to attempt to agree on an appropriate set of search criteria.
  2. Motions supported by expert testimony and facts regarding the search.
  3. Appointment of a neutral consultant who will design a search strategy.

Going it alone with legal search in a complex case is a fool’s errand. Bring in an expert. Spend a little to save a lot. It is not only the smart thing to do, it is also required by ethics. Rule 1.1: Competence, Model Rules of Professional Conduct. The ABA Comment two to Rule 1.1 states that “Competent representation can also be provided through the association of a lawyer of established competence in the field in question.” Yet, in my experience, this is seldom done and is not something that clients are clamoring for. That should change, and quickly, if we are ever to stop wasting so much time and money on simplistic e-discovery arguments. I am again reminded of the great Alexander Pope (1688–1744) and another of his famous lines from An Essay on Criticism.

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After I wrote this blog I did a webinar for ACEDS about this topic. Here is a one-hour talk to add to your personal Pierian spring.

 

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Proportionality Analysis Defeats Motion for Forensic Examination

May 28, 2018

It is rare of a judge to change their mind after making a decision. It is rarer still for a judge to celebrate doing so in a written opinion for the world to see. But that is exactly what Magistrate Judge Jeffrey Cole has done in his opinion dated May 17, 2018 in Motorola Sols., Inc v. Hytera Communications Corp., No. 17 C 1973 (N.D. Ill.).

This celebration is one reason that Judge Cole’s Order denying Motorola’s motion for forensic inspection is so remarkable. Another is that it begins with a quote, a rare occurrence in judicial orders, one that I always like. The quote celebrates the better late than never philosophy of changing your mind to follow a new understanding, a personal wisdom. The quote is by the late, great Supreme Court Justice, Felix Frankfurter. Felix served as a judge on the Supreme Court from 1939 to 1962.  Before that he was, among other things, a Harvard Law Professor and co-founder of the American Civil Liberties Union. Here is the quote with which Cole begins his order:

“Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”

Henslee v. Union Planters Nat. Bank & Trust Co., 335 U.S. 595, 600, 69 S. Ct. 290, 93 L. Ed. 259, 1949-1 C.B. 223 (1949)

(Frankfurter, J., dissenting)

Another unusual thing about Judge Cole’s order, and the real reason I am writing about it, is that the wisdom that came to him was from the doctrine of proportionality and Rule 26(b)(1). This was the basis for Judge Cole to deny plaintiff’s motion for a forensic inspection of defendant’s computers, in China no less.

District Court Judge Ronald Norgle had previously allowed the parties until October 6, 2017, to conduct discovery on the statute of limitations defense only and stayed all other discovery. The parties had one month in which to take discovery on a very limited topic of fraudulent concealment, which is a type of tolling within the doctrine of equitable estoppel of the limitations defense. Nothing else. After all, Motorola has waited almost ten years before filing a trade-secret theft suit against a Chinese corporation for allegedly stealing its radio wave technology. As Judge Cole colorfully described the situation (citations to record removed in all quotes) with a reference to Hannibal:

While the inquiry should have been uncomplicated, it has become a long, drawn out, pitched battle — one, in a rhetorical sense, to rival the Punic Wars — albeit without the elephants and the Alps and the sheer drama.

After that, the parties exchanged motions to compel repeatedly. Deadlines were extended, from one month to several. Thousands of pages of memoranda and exhibits were filed. 1  And, again, this was all over the supposedly limited discovery on a limited topic that ought to have taken little time and effort. The very nature of what occurred tends to sustain the all too prevalent observation that discovery has become more important than the actual case. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 595, n.13, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007); A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1013 (4th Cir. 1986).

1 The filings and orders in this case which, again, is only in the preliminary stage of determining whether Motorola’s filing is timely, already cover more than 7,500 pages. See also n. 5, infra.

Five months into this “limited” discovery process Motorola asked to conduct a forensic examination of the computers of “key Hytera witnesses who have been involved in the use of Motorola’s confidential information and any relevant Hytera servers … on which Hytera has stored Motorola documents,” all of which are located in China. Motorola said it wanted to “begin with forensic inspection of the computers” of seven Hytera employees. Judge Cole said this request reminded him of Winston Churchill’s famous quip: “Now this is not the end. It is not even the beginning of the end.”

Flip Flopping Towards Wisdom

After several hearings Judge Cole was persuaded by the siren songs of plaintiff’s counsel from the well-known firm of Kirkland & Ellis LLP. They must have been very good orators and put on a compelling argument to support their motion. They convinced Judge Cole to allow them to begin a forensic examination process in China under elaborate Hague Convention procedures. Only after the hearings and oral decision to compel the inspection did Judge Cole realize the error of that decision. Judge Cole to his credit does not blame Kirkland and Ellis litigators for leading him astray. Following standard judicial protocol Judge Cole assumed full responsibility for the initial error:

Over the course of two lengthy hearings on March 21 and April 4, 2018, I tentatively concluded that forensic examination of Hytera’s computers would be appropriate, but only if the parties could arrive at a suitable protocol that would not, among other things, run afoul of Chinese law. As we discuss, infra at 5, that was a mistake. But the law frowns on relying on a blunder to gain an opportunistic advantage. Cf. Architectural Metal Systems, Inc. v. Consolidated Systems, Inc., 58 F.3d 1227, 1231 (7th Cir.1995); Market Street Associates; Packer Trading Co. v. CFTC, 972 F.2d 144, 150 (7th Cir 1992); Centex Construction v. James, 374 F.2d 921, 923 (8th Cir.1967). 2

2 We should not be understood as ascribing fault to plaintiff’s counsel. After all, in our adversary system, lawyers properly play a partisan role. Masias v. Secretary of Health and Human Svcs, 2009 U.S. Claims LEXIS 281, at *27 (Fed. Cl. 2009); Philips Medical Systems Intern. B.V. v. Bruetman, 8 F.3d 600, 606 (7th Cir.1993) (Posner, J.). See also Smith v. Robbins, 528 U.S. 259, 293, 120 S. Ct. 746, 145 L. Ed. 2d 756 (2000) (Souter, J., dissenting) (“a partisan scrutiny of the record and assessment of potential issues, goes to the irreducible core of the lawyer’s obligation to a litigant in an adversary system … .”). Mistakes are ultimately (and in most cases) the responsibility of the court.

Judge Cole went on to celebrate a jurists right to change their mind in order to get things right.

The scope of discovery that I was initially inclined to allow was, in the context of the present inquiry that had been narrowed by the district court to the limitations issue, overbroad. What is being sought goes beyond the issue of equitable tolling. In the end, Motorola’s counsel and I were talking about relevance to allegations in Motorola’s complaint. And so, well beyond the statute of limitations, by the end of the April 4 hearing, discovery was encompassing documents related to Motorola’s entire case.

As we have said, “all judges make mistakes,” Fujisawa Pharm. Co., 115 F.3d at 1339, and, when possible, it is best that judges put them right.

Proportionality Applied to Restrain Discovery

In the May 17, 2018 order Judge Cole found the wisdom to say no and forbid the forensic examination of the computers in China. He did so because he found that this discovery was “out of proportion with the needs of this case, as presently limited by the district court” and cited Rule 26 (b)(1), Federal Rules of Civil Procedure. Although I am sure that he heard extensive argument and evidence concerning the estimated costs and burdens imposed by the forensic exams, his decision did not focus on costs. Instead it focused on one of the other very important factors in 26(b)(1), “the importance of the discovery in resolving the issues.” Judge Cole realized that the computers in China could not possibly have information in them of any real relevance to equitable tolling of the statute of limitations defense.

At a minimum, even if relevant to the present limited issue, discovery of computers in China is not proportional to the importance of discovery in resolving the issues and the burden and expense of the proposed discovery manifestly outweighs its likely benefit to the very limited question of equitable tolling. Although the federal discovery rules are permissive, they are not, as Judge Moran wisely put it, “a ticket to an unlimited … exploration of every conceivable matter that captures an attorney’s interest.” Sapia v. Bd. of Educ. of the City of Chi., 2017 U.S. Dist. LEXIS 73153, 2017 WL 2060344, at *2 (N.D. Ill. 2017); see also Leibovitch v. Islamic Republic of Iran, 2018 U.S. Dist. LEXIS 31713, 2018 WL 1072567, at *11 (N.D. Ill. 2018). “[J]udges should not hesitate to exercise appropriate control over the discovery process.” Herbert v. Lando, 441 U.S. 153, 177, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979). Failure to exercise that control results in needless and enormous costs to the litigants and to the due administration of justice.

Judge Cole also understood that a forensic inspection is a drastic remedy that requires good cause not shown by plaintiff here:

The original idea here was for a month or so of discovery focused on the very limited issue of the statute of limitations. While it is rare for parties to complete discovery even by dates chosen by their counsel, there can be no dispute that things have already gone far beyond what was intended and what was necessary in the statute of limitations portion of this case, in terms of time and scope. Now, Motorola wants things to go very much further. Forensic examination is generally regarded as a drastic step even in general discovery. See, e.g.,John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008) (“mere skepticism that an opposing party has not produced all relevant information is not sufficient to warrant drastic electronic discovery measures.”). As the court said in In re Ford Motor Company, 345 F.3d 1315 (11th Cir. 2003):

““In the absence of a strong showing that the responding party has somehow defaulted in this obligation, the court should not resort to extreme, expensive, or extraordinary means to guarantee compliance. Forensic inspection of computer hard drives is an expensive process, and adds to the burden of litigation for both parties, as an examination of a hard drive by an expert automatically triggers the retention of an expert by the responding party for the same purpose. Furthermore, examination of a hard drive inevitably results in the production of massive amounts of irrelevant, and perhaps privileged, information … . This court is therefore loathe to sanction intrusive examination of an opponent’s computer as a matter of course, or on the mere suspicion that the opponent may be withholding discoverable information.”

The Advisory Committee Notes to Rule 34 recognize that courts must use caution in evaluating requests to inspect an opposing party’s electronic devices or systems for ESI, in order to avoid unduly impinging on a party’s privacy interests:

Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy. The addition of testing and sampling to Rule 34(a) with regard to documents and electronically stored information is not meant to create a routine right of direct access to a party’s electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.

Fed. R. Civ. P. 34, Advisory Committee Notes—2006 Amendment (emphasis added). Likewise, the Sedona Principles urge general caution in this area:

Civil litigation should not be approached as if information systems were crime scenes that justify forensic investigation at every opportunity to identify and preserve every detail … . [M]aking forensic image backups of computers is only the first step of an expensive, complex, and difficult process of data analysis that can divert litigation into side issues and satellite disputes involving the interpretation of potentially ambiguous forensic evidence.

The Sedona Principles, supra, at 34, 47. 4

Conclusion

Judge Cole’s wrap up is wise and witty and something you may want to quote in many discovery disputes, especially the footnote:

Parties are entitled to a reasonable opportunity to investigate the relevant facts — and no more. Upjohn Company v. United States, 449 U.S. 383, 390, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981); Vakharia v. Swedish Covenant Hosp., 1994 U.S. Dist. LEXIS 2712, at *2 (N.D. Ill. 1994) (Moran, J.). Motorola has already had that reasonable opportunity and far more. What was intended to be a month-long process of discovery on a very limited issue has turned into a protracted affair in which Motorola has received 700,000 documents — nearly 3 million pages — over a period of eight months. 5

5 A ream of paper is 500 sheets, which is 2 inches tall. Three million pages is 6,000 reams, meaning that 3 million pages of discovery, which is about 1,000 feet high or 100 stories high. By any measure, that is extraordinary.

Yet, apparently for Motorola, it’s not enough. It now wants a forensic inspection of several computers in China — and it warns that that is only the “beginning.” What should have been limited discovery on a “straightforward [issue has] spiral[ed] out of control.” Montanez v. Simon, 755 F.3d 547, 552 (7th Cir. 2014). The time has come to say: “enough is enough.” Walker v. Sheahan, 526 F.3d 973, 981 (7th Cir. 2008). Eight months of “limited,” single-issue discovery are now at an end. Motorola’s motion for forensic inspection is denied.

Enough is enough. To go further would have been a disproportionate burden, especially considering the very narrow issue allowed in discovery. Judge Cole at first made a mistake, and then he changed his mind and made it right. He is a wise judge. I wish there were more like him. Except of course if you change your mind to rule against me! <‘_’>


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.

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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.

 


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