e-discovery 2.0

Now that that dust has settled, the folks who attended LegalTech New York 2012 can try to get to the mountain of emails that accumulated during the event that was LegalTech. Fortunately, there was no ice storm this year, and for the most part, people seemed to heed my “what not to do at LTNY” list. I even found the Starbucks across the street more crowded than the one in the hotel. There was some alcohol-induced hooliganism at a vendor’s party, but most of the other social mixers seemed uniformly tame.

Part of Dan Patrick’s syndicated radio show features a “What Did We Learn Today?” segment, and that inquiry seems fitting for this year’s LegalTech.

• First of all, the prognostications about buzzwords were spot on, with no shortage of cycles spent on predictive coding (aka Technology Assisted Review). The general session on Monday, hosted by Symantec, had close to a thousand attendees on the edge of their seats to hear Judge Peck, Maura Grossman and Ralph Losey wax eloquently about the ongoing man versus machine debate. Judge Peck uttered a number of quotable sound bites, including the quote of the day: “Keyword searching is absolutely terrible, in terms of statistical responsiveness.” Stay tuned for a longer post with more comments from the General session.
• Ralph Losey went one step further when commenting on keyword search, stating: “It doesn’t work,… I hope it’s been discredited.” A few have commented that this lambasting may have gone too far, and I’d tend to agree.  It’s not that keyword search is horrific per se. It’s just that its efficacy is limited and the hubris of the average user, who thinks eDiscovery search is like Google search, is where the real trouble lies. It’s important to keep in mind that all these eDiscovery applications are just like tools in the practitioners’ toolbox and they need to be deployed for the right task. Otherwise, the old saw (pun intended) that “when you’re a hammer everything looks like a nail” will inevitably come true.
• This year’s show also finally put a nail in the coffin of the human review process as the eDiscovery gold standard. That doesn’t mean that attorneys everywhere will abandon the linear review process any time soon, but hopefully it’s becoming increasingly clear that the “evil we know” isn’t very accurate (on top of being very expensive). If that deadly combination doesn’t get folks experimenting with technology assisted review, I don’t know what will.
• Information governance was also a hot topic, only paling in comparison to Predictive Coding. A survey Symantec conducted at the show indicated that this topic is gaining momentum, but still has a ways to go in terms of action. While 73% of respondents believe an integrated information governance strategy is critical to reducing information risk, only 19% have implemented a system to help them with the problem. This gap presumably indicates a ton of upside for vendors who have a good, attainable information governance solution set.
• The Hilton still leaves much to be desired as a host location. As they say, familiarity breeds contempt, and for those who’ve notched more than a handful of LegalTech shows, the venue can feel a bit like the movie Groundhog Day, but without Bill Murray. Speculation continues to run rampant about a move to the Javits Center, but the show would likely need to expand pretty significantly before ALM would make the move. And, if there ever was a change, people would assuredly think back with nostalgia on the good old days at the Hilton.
• Despite the bright lights and elevator advertisement trauma, the mood seemed pretty ebullient, with tons of partnerships, product announcements and consolidation. This positive vibe was a nice change after the last two years when there was still a dark cloud looming over the industry and economy in general.
• Finally, this year’s show also seemed to embrace social media in a way that it hadn’t done so in years past. Yes, all the social media vehicles were around in years past, but this year many of the vendors’ campaigns seemed to be much more integrated. It was funny to see even the most technically resistant lawyers log in to Twitter (for the first time) to post comments about the show as a way to win premium vendor swag. Next year, I’m sure we’ll see an even more pervasive social media influence, which is a bit ironic given the eDiscovery challenges associated with collecting and reviewing social media content.

The bashing of our judicial system seems to have reached a fevered pitch.  Groups like the American College of Trial Lawyers (“ACTL”) have proclaimed in a recent report that while the “civil justice system is not broken, it is in serious need of repair.”  The blame game seems to have judges and attorneys alike pointing fingers.  The Fellows of the ACTL (perhaps not surprisingly) seems to pin some of the blame on the judiciary:

“Judges should have a more active role at the beginning of a case in designing the scope of discovery and the direction and timing of the case all the way to trial. Where abuses occur, judges are perceived not to enforce the rules effectively.”

Groups like the Sedona Conference chalk up many of the ills to the failure to cooperate, so much so that they’ve orchestrated a cooperation proclamation – which has picked up enough support by the bench to have garnered several cites in the case law (see e.g., Mancia).

The bench for its part seems to put some of the onus on litigators and their reticence to get with the times.  William A. Gross. Constr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 2009 WL 724954 (S.D.N.Y. Mar. 19, 2009) is the latest example of such a proclamation.  In this construction defect case, Judge Peck (a Sedona devotee) issues what he hopes will be a “wake-up” call to the bar about the need for “careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or ‘keywords’ to be used to produce emails or other electronically stored information (‘ESI’).”  In Gross, the court had to mediate an e-discovery dispute where the requesting party propounded a blatantly over-inclusive search request crafted by the requesting parties.  Unfortunately, the responding entity was a non-party and they simply dig their heads in the sand.  In order to facilitate a resolution this left the Court in the “uncomfortable position” of having to craft a “keyword search methodology for the parties, without adequate information from the parties (and Hill).”

Judge Peck’s exasperation with these antics was palpable.  Summing up the problem by citing Judge Grimm and Victor Stanley he stated: “This case is just the latest example of lawyers designing keyword searches in the dark, by the seat of the pants, without adequate (indeed, here, apparently without any) discussion with those who wrote the emails.”  He further noted: “[w]hile this message has appeared in several cases from outside this Circuit, it appears that the message has not reached many members of our Bar.”

After noting both Sedona and Judge Facciola (of O’Keefe and Equity Analytics fame) Peck’s opinion reached a crescendo:

“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.”

While it’s easy to see who Peck blames in this brouhaha, it takes (at least) two to tango.  Meaning that litigants on both sides of the “v” must move beyond the typical “seat of the pants” electronic discovery wrangling.  And, judges need to be savvy enough to spot the issues to help/force the parties into such an enlightened/cooperative state.  Nothing short will get the job done.