E-discovery and Predictive Coding: FUD Fight!

The blogosphere has manufactured a lot of controversy this year arguing over predictive coding. Whether it’s transparent enough. Whether it’s defensible. Whether lawyers can use it. Whether we’ll even need lawyers anymore once we start.

Maybe it's not so surprising given that it’s an election year. But in IT we call this FUD (fear, uncertainty, doubt). Because predictive coding is already being used. Vendors have been selling it in products and services for years. Service providers use it. Law firms use it. Legal staffing firms are using it. General counsel use it directly for internal investigations, among other things. Yes, there have been some thorny cases this year in the press, but I’d say these are more the growing pains of mainstream adoption than the cautionary tales of the bleeding edge martyrs.

Topics: Information and Risk Management e-Discovery

Transperfect Shores Up Digital Reef in More E-discovery M&A

E-discovery software vendor Digital Reef was acquired by Transperfect today for an undisclosed amount. DR has been in the e-discovery market for years with what customers we’ve spoken to have called a very good tool for Early Case Assessment (ECA), processing, and classification; yet it is still a product that has ultimately failed to gain wider exposure and direct sales through several rounds of executive changes. This is in spite of SaaS, on-prem, and service provider options, as well as a wide range of analytics and its own data center.

Enter Transperfect – a privately-owned and well-regarded service provider reporting $350m revenues, known for legal translation among a host of other legal services, including e-discovery. New Yorkers may also know them from their many ads in taxis, telephone booths, and elsewhere up and down Manhattan.

Topics: Information and Risk Management e-Discovery

ILTA 2012: E-discovery Trends

E-discovery in general is not a major focus of ILTA, given how much of it law firms outsource to service providers - and increasingly how much corporate clients outsource to service providers directly or perform themselves, in-house.

Topics: Information and Risk Management e-Discovery

ILTA 2012 Pre-Game: E-discovery Year in Review

Why wait til year-end for a recap? It’s been a head-spinning time for e-discovery acquisitions, and by December we’ll all be too busy prepping new announcements for LegalTech to worry about the last year anyway (or is it just me?).

Since the announcements for ILTA 2012 are embargoed until Monday (and the best gossip won’t emerge til happy hour), let’s examine some recent news impacting the space, in the context of what to look for at the show.

Topics: Information and Risk Management e-Discovery

The Burden of E-discovery: Global Perspective

Time for a snapshot on how corporations are coping with e-discovery. As part of ESG's 2012 IT Spending Intentions Survey, we asked organizations to gauge the burden e-discovery activities place on their internal IT staffs.

Topics: e-Discovery

IBM Acquires Vivisimo as Big Data Search Buys Heat Up

IBM announced plans to buy enterprise search company Vivisimo today. According to statements from Big Blue, the acquisition is aimed at bolstering IBM's already sizeable investment in Big Data analytics with Vivisimo's added federation capabilities.

Topics: IBM HP Enterprise Software Content Management Search Archiving e-Discovery

Live at the E-discovery Witch Trials

Judge Peck filed an order yesterday in response to the plaintiff's request for his recusal in the Da Silva Moore case. In it he defends his earlier opinion and his reputation, closing with a call for a return to civility.

Topics: e-Discovery

Who do you love? Nasuni.

Time for some success stories.

Topics: Data Management Nasuni e-Discovery

Predictive Coding Defensibility: the Devil in the Details

David Kessler of Fulbright and Jaworski weighed in on Judge Peck's recent predictive coding opinion this week, with the conclusion that a defensible process is key to the bench, not the particular technology used:

In short, the key takeaway here is not simply that Judge Peck approved the use of technology assisted review. While a precedent has now been set for the use of computer assisted review technology, the Opinion itself actually spends very little time discussing the specific technology selected by the parties. Judge Peck does, however, spend more than 25 pages discussing the process that the parties' attorneys applied to the use of the technology in this matter, going so far as to attach another 25 pages worth of protocol agreed to by the parties for the technology's use in this case. It appears that to this court, it is the process that is key, not the particular technology standing alone. Without a defensible, supportable, and explainable process, technology assisted review is no better and probably less defensible than other review approaches. As Judge Peck concludes: "As with keywords or any other technological solution to ediscovery, counsel must design an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant ESI while adhering to Rule 1 and Rule 26(b )(2)(C) proportionality." Opinion at 25-26.

I've bolded the "pull quote" for me. Remember that the initial approach on this case suggested by one of the parties was thrown out by Judge Peck as indefensible (judicial-coup-for-computer-assisted-review/index.html">as I discussed in my last post), since it would have missed too many potentially responsive items by only including the first 40,000. Judge Peck's opinion is being heralded as a "game-changer"--will the next inevitable step toward acceptance be adversaries' attempts at "gaming" discovery with their predictive coding process?

Which brings me to the importance of sampling. It's interesting: one predictive coding power-user I spoke to recently said he actually thought the random statistical sampling technology being built into many review tools was more significant and useful in his review projects than the predictive coding capabilities themselves. Another agreed that sampling was critical, but criticized the methods used by his particular tool, saying his quants had calculated mathematically that it required an overly broad sample. I've heard yet another argument that statistical sampling is insufficient--that samples should be weighted and constructed as "representative" of the rest of the document corpus, depending on the data contents.

I suspect these debates are just gearing up. It's not a matter of whether predictive coding is theoretically defensible anymore, but how you're using it and how effective and defensible it will be. Will predictive coding now go from the boogeyman of "automating attorneys" to becoming just a more quantitative stick to beat litigants over the head with? Maybe so--if they don't understand the tools and process involved.

Topics: Enterprise Software e-Discovery

Judicial Coup for Computer-Assisted Review

Magistrate Judge Andrew Peck, of the U.S. District Court for the Southern District of New York made e-discovery headlines late February with the first judicial endorsement of predictive coding. I'll leave it to the legal eagles to debate the courtroom implications, but it's a significant stamp of approval from the bench.You can read more from LTN, Forbes, Chris Dale, and Recommind, whose Axcelerate software is involved in the case.

Topics: Information and Risk Management Recommind e-Discovery