As 2011 wrapped up, and 2012 begins, there appears to be a heavy focus on a technology application often called “predictive coding” or “technology-assisted review”. We are all looking for the magic technology button (EASY) that will solve the problems we encounter on a daily basis with the ever expanding volume of EDiscovery data. What we have to remember is: 1) technology is just another tool to help attorneys do their job and 2) that we have to be able to describe what the technology is and how it operates in order to defend our decisions regarding document productions and 3) there is no EASY button (more on that in my next blog). We need to understand and document what goes on behind the scene when the technology performs its “magic”
On some level, lawyers have not yet embraced the technology advances because the courts have not yet given their ultimate stamp of approval on the technology approach. However, courts are beginning to show signs that technology is an important part of the answer and should be integrated into the litigation process. The ultimate question is what will this “new” multi-layered approach look like in the final analysis?
U.S. Magistrate Judge Andrew Peck of the Southern District of New York wrote an article in October, Search, Forward, in Legal Technology News. He acknowledged that the nature of more advanced technology assisted review presents a new paradigm for the courts. He wrote,
Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval. In my opinion, computer-assisted coding should be used in those cases where it will help “secure the just, speedy, and inexpensive” determination of cases in our e-discovery world.
While this article immediately caused a great volume of commentary and analysis on the merits of technology-assisted review and put forth the arguments that it was in fact the “magic bullet”, there is much more to Judge Peck’s article upon a closer reading. In his article, he revisited some of the seminal cases in this area of the law written by Judge Grimm and Judge Facciola in which there was discussion about the limits of keyword searches and then described how these issues were analogous to predictive coding solutions.
He pointed lawyers to the Sedona Principles as a basis for developing a methodology that can be defended by the parties. His two major points are that 1) the practice of EDiscovery should be focused on methodology, versus technology and 2) that legal arguments need to be grounded in the reasonableness of technology-assisted review. One of the fundamental features when defining “reasonable” behavior in litigation is the ability of counsel to provide detailed information about how and why certain steps were taken during the document production process. Explaining a methodology and providing detailed back up documentation is important when convincing a judge that you have done the best possible job to comply with the FRCP.
It is very likely that for the next several years, predictive coding/technology-assisted review will increase its role in EDiscovery until the next new technology (artificial intelligence?) come along to replace it. It is clear that technology is here to stay and that we all benefit from its integration into the document review process. Traditional review approaches are no longer defensible. As a tool, technology can help us achieve the goal of taming the increasing volume of EDiscovery. But in the end, it is only a tool.
Technology is only a tool
Tools need to be deployed properly, described completely and integrated into an overall litigation strategy. Technology can not do this, only humans can. Lawyers and technologists need to apply their legal insights and understanding to implement the technology. Solving complex problems and providing a methodology that is accurate and defensible remain under the control of humans.
Therefore, the methodology employed by a legal team is what will provide the judiciary with the context for the decisions that are made during the document review and will ultimate Lely determine whether you have taken reasonable, defensible steps. You will have to not only be able to describe what the technology does and how it works, but be able to provide the judges with the experts used to execute the technology. This will include lawyers, linguists, statisticians and technologists who will be required to demonstrate that the proper balance between technology and methodology.
Statisticians and Linguists – Why are they Important?
Let’s face it. Most lawyers became lawyers because math was not their strong suit. Legal training focuses words: making judgments and interpreting language, formulating defensible arguments and clearly articulating that argument. In fact, only attorneys can make the subjective determinations needed throughout the litigation, particularly when determining proportionality and reasonableness in EDiscovery. Lawyers are, and will continue to remain at the center of the legal process based on legal and subject matter knowledge. Lawyers should focus on case strategy and allow the substantive experts provide the expertise necessary to obtain results and document their methodology. As the field of EDiscovery becomes more complex and specialized, legal teams need to integrate the services of other experts to achieve their goals.
Predictive coding and technology-assisted review are based on statistical algorithms and linguistic word patterns, which are clearly specialty fields unto themselves. Only linguists and statisticians who devise the software used in advanced can properly understand how best to integrate what they have created with the specific circumstances of your litigation. It is imperative that the legal staff work with these experts to obtain the best results when using this sophisticated technology. They should become part of the litigation team to insure that the results obtained are correct and defensible. Their role is to develop protocols for the review, make sure that the correct searches are employed to find the documents, study the results of the searches and fine tune the search strategy, and make sure that the results represent a statistical sampling of the documents that can be defended in the courts. This methodology is ultimately what is used to show that the steps you have taken are reasonable under the law and given the circumstances of your litigation.
What is the Takeaway?
Technology is here to stay. Lawyers need it to perform their jobs effectively and represent their clients in a world of ever increasing complexity. But technology is only a tool, and it is not the magic button that some hope it to be. Successful litigation in 2012 requires that an integrated team of experts, including software experts, statisticians and linguists who can deploy the latest technology in the most effective manner. While lawyers can and should continue to design the litigation strategy; the use of experts will improve the search techniques and ultimately result in cost savings as the volume of documents that needs to have eyes placed on them is reduced. Technology is a tool, but it must be deployed intelligently by humans to produce any tangible results. The mythology employed by these teams of experts is ultimately what the courts can understand and will rely on.
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