Welcome to Module 1-M.

Metrics and Advanced Technologies.

goldenmean_spiral_rectangleMetrics is one of the three basic pillars to e-discovery. By now you should know the other two and be able to explain them to your fellow e-discovery law students. Metrics is a larger, more ambiguous trend, that is more difficult to understand. It involves learning how to measure and estimate costs, and how to employ new methods and technologies to search for and review ESI within a budget appropriate for a particular case. It requires some comfort zone with match, because you need to analyze all the measurement made in metrics.

Construction EstimatingIn the videos below Professor Losey explains how metrics and technology are an essential part of best practices today. Numbers and certain basic math functions, coupled by use of some of the advanced technologies now available in the field, can protect you from paying too much to comply with an opposing party’s discovery request. Measurements and estimates facilitate cooperative discussions between counsel. After the videos the module goes into Sedona’s Commentary on Search, and the Myth of the Pharaoh’s Curse. This is intellectually challenging. The class goes on to include another Sedona paper, Commentary on Achieving Quality, featuring quotes from the great jurist, Oliver Wendell Holmes, Jr., and also cites to SciFi writer William Gibson. This is an important class. Buckle up!

Metrics can also protect an attorney from sanctions when a material mistake is made. In large projects mistakes of some sort are always made. The use of metrics to document and guide efforts, and for quality control, allows an attorney to later prove that reasonable efforts were made. This allows an attorney to show the court that the mistake occurred in spite of these efforts. As you will hear time and again in this course, that is all the law requires: reasonable efforts, not perfection. This will be explained in greater detail in the second half of the course when we cover sanctions in detail for the loss or delay in producing ESI.

This is a very long and challenging Module, but important. Allow yourself plenty of time to get through it all.

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The amount and quality of efforts required for reasonability under the law is a rapidly evolving standard. Metrics and quality control are important elements in that evolving standard. See for instance the important Sedona Commentary entitled The Sedona Conference® Commentary on Achieving Quality in the E-Discovery Process. This Commentary provides the background for understanding of metrics and technology as the third pillar of e-discovery.

Sedona’s Commentary on Search, and the Myth of the Pharaoh’s Curse

TThoth brings the gift of writing, but Thamus sees it as a cursehe Sedona Conference  Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery may be downloaded for personal use. This Best Practices Commentary, like all of the Sedona publications, was written by a committee of expert members of The Sedona Conference, who agreed upon the content and wording. This particular group is called the “Search and Retrieval Sciences Project Team.” Writings by committee are usually an invitation for disaster, but Sedona consistently manages to pull it off, and do a first rate job, primarily, I think, because of the quality of their editors. The Editor-in-Chief for the Search Team is Jason Baron, along with Executive Editors Richard Braman and Kenneth Withers, and Senior Editors Thomas Allman, James Daley and George Paul.

The Search Commentary begins by concisely stating the problems faced today to search high volumes of ESI. It then offers three general solutions, followed by eight specific “Practice Points.” The comments contain both intellectual depth and good practical advice to all those struggling with the problems of search.

The Search Commentary is carefully considered and well written. Although I have a couple of suggestions on the comments, I fully agree with the committee’s observations and solutions. Many will not. In fact, I suspect that this publication will be quite challenging to many in the legal profession because it contradicts several well-established myths. For instance, the Search Team acknowledges that most people consider:

manual review by humans of large amounts of information is as accurate and complete as possible – perhaps even perfect – and constitutes the gold standard by which all searches should be measured.

But the committee states that this is a myth! Manual review may be perfect for a few hundred pages of documents, but fails miserably for a few hundred thousand, much less million, or billion. So much for the gold standard.

The Search Team also make the point, which is not controversial, that the large amounts of ESI in many lawsuits today has made the “venerated process of ‘eyes only’ review” both impractical and cost-prohibitive. They contend that a new consensus is forming in the legal community:

that human review of documents in discovery is expensive, time consuming, and error-prone. There is growing consensus that the application of linguistic and mathematic-based content analysis, embodied in new forms of search and retrieval technologies, tools, techniques and process in support of the review function can effectively reduce litigation cost, time, and error rates.

This leads to the Practice Point 1 (of 8):

In many settings involving electronically stored information, reliance solely on manual search process for the purpose of finding responsive documents may be infeasible or unwarranted. In such cases, the use of automated search methods should be viewed as reasonable, valuable, and even necessary.

The automated search method of choice today is the almost-as-venerated process of keyword search review. It involves the use of select keywords that you think the documents you are looking for will contain. Keyword searches also frequently include “boolean” logic, and can be expanded further with fuzzy logic, and stemming. You then manually search the documents located by keyword search to determine relevance. The manual review then frequently leads to adjustments in the query terms and repeat of the keyword search. Most lawyers think that with this kind of iterative process, and skilled researchers, you can find most of the documents you are looking for.

In fact, in a study done in 1985, lawyers and paralegals having special skills in this area searched a discovery database of 40,000 documents and 350,000 pages in a case involving a subway accident. David Blair & M.E. Maron, An Evaluation of Retrieval Effectiveness for a Full-Text Document Retrieval System, 28 Com. A.C.M. 289 (1985). At the end of the lengthy process, the legal team was confident that they had located about 75% of the relevant documents. In my experience, most attorneys think they have a similar, if not better, success rate.

Lawyers have been using keyword searches since the ’70s with Lexis and Westlaw to find case law. I was first trained in this in 1978. At that time, Westlaw and Lexis each had mandatory video (VHS) training programs leading to certification. Once certified, you could use “dumb terminals” to access mainframes over modems. It was a tremendous innovation in its day.

It was a natural extension in the ’80s and ’90s to use the same keyword search technology to locate relevant documents in large sets of ESI. Lawyers and judges quickly endorsed this legal research method to also search for documents. As one judge put it, “the glory of electronic information is not merely that it saves space but that it permits the computer to search for words or ‘strings’ of text in seconds.’ In re Lorazepam & Clorazepate, 300 F.Supp.2d 43, 46 (D.D.C. 2004). Keyword searching appeared to solve the problem of large volumes of electronic documents where the gold standard of “eyes only” review was not practical. It might not be perfect like manual searches, but it got at least 75% of the documents, and so was an acceptable alternative.

The profession today is very familiar and comfortable with keyword searching. Keyword search is the method employed by almost all lawyers when they use an automated search process. In fact, I suspect that most lawyers are not even aware that there are alternatives to keyword searches.

That is why the committee’s next contention may prove very controversial: the supposed accuracy of keyword searches is just another myth! The Blair and Maron study in 1985 showed that, while the lawyers thought they had found at least 75% of the relevant documents, in fact they had only located 20%.

Can justice really be served with only 20% of the picture? Has the exploding cornucopia of ESI cursed the legal system with the pretence of real knowledge?

The Blair and Moran study, which is still the only one of its kind, led one commentator, Daniel Dabney, a lawyer and information scientist who now works for Westlaw, to equate the false confidence of computer searchers to the Curse of  Thamus. Daniel P. Dabney, The Curse of Thamus: An Analysis of Full-Text Legal Document Retrieval, 78 LawLibr. J. 5 (1986). Thamus was an Egyptian Pharaoh reported by Plato in his Phaedrus Dialogue to have criticized the invention of writing as a false substitute for real learning. Thamus condemned writing, said to be a gift from the god Theuth (aka Hermes), as a curse in disguise. The Pharaoh predicted that writing would only lead to a delusionary “semblance of truth” and “conceit of wisdom.” As Dabney put it in his article:

Since the mere possession of writings does not give knowledge, how are we to extract from this almost incomprehensibly large collection of written records the knowledge that we need?

Dabney argued that the Blair and Maron study proved that full-text computer assisted retrieval was not a valid cure to the Pharaoh’s curse. The Sedona Search Team agrees:

. . . the experience of many litigators is that simple keyword searching alone is inadequate in at least some discovery contexts. This is because simple keyword searches end up being both over- and under-inclusive in light of the inherent malleability and ambiguity of spoken and written English (as well as all other languages). . . .

The problem of the relative percentage of “false positive” hits or noise in the data is potentially huge, amounting in some cases to huge numbers of files which must be searched to find responsive documents. On the other hand, keyword searches have the potential to miss documents that contain a word that has the same meaning as the term used in the query, but is not specified. . . .

Finally, using keywords alone results in a return set of potentially responsive documents that are not weighted and ranked based upon their potential importance or relevance. In other words, each document is considered to have an equal probability of being responsive upon further manual review.

The Sedona Search Team notes that currently most e-discovery vendors and software providers continue to rely on outdated keyword searching. This is also what I am seeing. So, obviously this message may come as an unwelcome challenge to many e-discovery providers, and is therefore likely to be controversial.

But the Sedona Search Commentary does not end on a negative note; instead it points to new search technologies that will significantly improve upon the dismal recall and precision ratios of keyword searches. Here is how they summarize the herald of coming good:

Alternative search tools are available to supplement simple keyword searching and Boolean search techniques. These include using fuzzy logic to capture variations on words; using conceptual searching, which makes use of taxonomies and ontologies assembled by linguists; and using other machine learning and text mining tools that employ mathematical probabilities.

This part of the new Commentary is really interesting, albeit challenging, as the Team talks about alternative search tools and methods, and describes many of them in detail in the Appendix.

The many incredible advances in technology over the last twenty years have created the legal morass we are in now. In our present cursed state, it is impossible to find all relevant evidence, and a mere 20% capture rate seems pretty good. The only viable solution is to fight fire with fire, and find a high-tech answer. This requires a new kind of team synergy that I often talk about, a combination of Science, Technology and the Law. The Sedona search group concludes with a similar recommendation:

The legal community should support collaborative research with the scientific and academic sectors aimed at establishing the efficacy of a range of automated search and information retrieval methods.

The problems created by the information explosion impact all of society, not just the law. There is strong demand for new, improved search technologies, and this is becoming big business. Billions of dollars are now pouring into search technology research. For instance, in 2006 Google spent $1.23 billion, Yahoo spent $833 million, and e-Bay spent $495 million in core research and development activities. With this kind of commercial activity, there is good reason to hope that the Pharaoh’s curse may soon be lifted.

Sedona on Quality: A Paper Worthy of Holmes

Judge Oliver Holmes, Jr.The Sedona Conference® Commentary on Achieving Quality in the E-Discovery Process is a must read for anyone seeking to improve their skills in project management, especially in the core functions of search and review. One of its most important insights is that metrics and statistics are now indispensable tools of discovery. The importance of statistics to the law is actually an old insight that has taken a long time to materialize. The Sedona Commentary quotes the great jurist Oliver Wendell Holmes, Jr., shown right, who said in 1897:

For the rational study of the law the black letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.

The future has taken a lot longer to reach most lawyers than Justice Holmes expected. Statistics is still a stranger to most litigators, especially as a tool of discovery. But by the time you finish studying this new Commentary on Quality, you will see that statistics is a powerful tool of the here and now.

We can thank the hardworking Sedona Editors-in-Chief for this excellent new publication, Jason R. Baron and Macyl A. Burke. They were assisted by Senior Contributing Editor, Thomas Y. Allman, and Executive Editors, Richard G. Braman and Kenneth J. Withers, with input from Members of Working Group 1. This commentary is a project of The Sedona Conference® Working Group on Best Practices for Document Retention and Production.

Here is the opening paragraph of the Executive Summary, which should entice you, like it did me, to read more:

The legal profession is at a crossroads: the choice is between continuing to conduct discovery as it has “always been practiced” in a paper world — before the advent of computers, the Internet, and the exponential growth of electronically stored information (ESI) — or, alternatively, embracing new ways of thinking in today’s digital world. Cost-conscious clients and over-burdened judges are demanding that parties now undertake new approaches to solving litigation problems. The central aim of the present Commentary is to introduce and raise awareness about a variety of processes, tools, techniques, methods, and metrics that fall broadly under the umbrella term “quality measures,” and that may be of assistance in taming the ESI beast during the various phases of the discovery workflow process. These include greater use of project management, sampling, and other means to verify the accuracy of what constitutes the “output” of e-discovery. Such collective measures, drawn from a wide variety of scientific and management disciplines, are intended only as an entry-point for further discussion, rather than any type of all-inclusive checklist or cookie-cutter solution to all e-discovery issues.

The truth is, there can be no cookie-cutter solution or all-inclusive checklist for a subject as complex and dynamic as e-discovery. Yet, those of us who specialize in this area get asked for such easy-buttons all of the time. The best that can be hoped for is competency training and the gift of this writing: quality control procedures.

Critique of the Five Reasons Stated for Quality Control

Why is quality so important to the e-discovery process? The obvious answer is to avoid mistakes and the sanctions that can come with mistakes. The Sedona Commentary agrees that such risk management is the primary factor, but then, at page one lists four other reasons why quality control is important:

  1. “Failure to employ a quality e-discovery process can result in failure to uncover or disclose relevant evidence which can affect the outcome of litigation.” I call this the “adequate recall factor” where you find enough of the truth for justice to be done in a case.
  2. “An inadequate e-discovery process may allow privileged or confidential information to be inadvertently produced.” I call this the “adequate confidentiality factor” where you protect enough of the confidential information to meet your client’s specifications. Some may be quite paranoid regarding disclosure of any privileged or confidential information, and willing to spend vast sums of money to avoid it. Others may not care as much if a few attorney-client emails, out of thousands, slip through the cracks and are more willing to rely upon the claw-back protections of Evidence Rule 502 to save money.
  3. “Procedures that measure the quality of an e-discovery process allow timely course corrections and provide greater assurance of accuracy, especially of innovative processes.” I consider this to be a secondary “adequate recall factor,” which allows for quality adjustment of search protocols and other processes as results are measured, new facts uncovered, issues evolve, and insights gained.
  4. “A poorly planned effort can also cost more money in the long run if the deficiencies ultimately require that e-discovery must be redone.” I call this the “do-over avoidance factor,” where if you do something right the first time, you do not have to pay to do it again. This, for me, is just one aspect of a larger “money-savings factor” that can result from quality processes.

OLIVER WENDELL HOLMESI agree that all five factors are important, but I am inclined to think that the economic savings that can result from quality control are equally important to the e-discovery process as risk management, although perhaps not as obvious. As Justice Holmes said over 100 years ago, we lawyers of his future must not only be men and women of statistics, but also “masters of economics.” The savings can not only be realized by avoiding costly do-overs, as the Commentary points out, but also by increasing culling quantity and review speed. Quality controls make it possible to significantly reduce the amount of ESI to review, and to reduce the ESI volume in a manner that is legally defensible. This culling process, as shown generally in the diagram below, is key to dramatic reduction of the costs of e-discovery.

CULLING.filters_MULTI_Basic

The process of intelligent reduction of data size prior to review is an essential component of what is now being called “early case assessment.” One of the Senior Editors of the Commentary on Quality, Jason R. Baron, wrote about this type of case assessment culling in another short paper he wrote with Ronni D. Solomon for use at a Sedona Conference Institute CLE entitled Bake Offs, Demos & Kicking the Tires. In spite of this title, it is well worth reading. See especially their Tip 5 where they talk about utilizing keyword “black lists” to reduce ESI size before full review. They also mention the critical need to see the results of keywords, not just hit totals, in order to make an intelligent choice of effective keywords. It is no longer an acceptable practice to choose keywords in the blind. It results in weak culling and thus excessive review. We need to see the results of keyword filtering to be able to aggressively reduce the volume of ESI and still maintain quality.

This type of early case assessment culling is critical because the review stage is by far the most expensive step in e-discovery. Anything that cuts the amount of ESI to be reviewed has a direct, substantial impact on the bottom line. Of course, better, faster, and more efficient review of the ESI can also reduce costs. See Bake Offs, Tip 3, and the discussion of clustering tools. With proper quality controls, the costs savings from culling can be realized without sacrificing the other four goals stated in the Commentary on Quality.

In today’s economy, the money-saving aspects of quality control are just as important as risk management, and, in my view, more important than the secondary benefits of “adequate recall factors” and “confidentiality factors.” E-discovery costs must be significantly reigned in for the civil justice system to avoid the danger of replacement by private arbitration, or worse, by self-help. For that reason, we must leave the old paradigm of total-recall in favor of a more realistic, cost-controlled view. As I often say these days, how much of the truth can a particular dispute afford in view of the constraints of proportionality and Rule 26(b)(2)(C)?

Four Guiding Principles Behind the Commentary

The Executive Summary also contains an explanation of the four guiding principles behind the commentary:

Principle 1. In cases involving ESI of increasing scope and complexity, the attorney in charge should utilize project management and exercise leadership to ensure that a reasonable process has been followed by his or her legal team to locate responsive material.

Principle 2. Parties should employ reasonable forms or measures of quality at appropriate points in the ediscovery process, consistent with the needs of the case and their legal and ethical responsibilities.

Principle 3. Implementing a well thought out e-discovery “process” should seek to enhance the overall quality of the production in the form of: (a) reducing the time from request to response; (b) reducing cost; and (c) improving the accuracy and completeness of responses to requests.

Principle 4. Practicing cooperation and striving for greater transparency within the adversary paradigm are key ingredients to obtaining a better quality outcome in e-discovery. Parties should confer early in discovery, including, where appropriate, exchanging information on any quality measures which may be used.

I was pleased to see that cooperation was included as the fourth principle behind quality control. Cooperation is an ethical imperative that will necessarily result in substantial costs savings by the avoidance of litigation churning. The Commentary correctly notes that cooperation can also cause a significant increase in quality.

All four of these Principles behind Quality are, in turn, based on the fourteen Sedona Principles, but especially on Principle 11, which states:

A responding party may satisfy its good faith obligation to preserve and produce relevant electronically stored information by using electronic tools and processes, such as data sampling, searching, or the use of selection criteria, to identify data reasonably likely to contain relevant information.

For that reason, much of the Commentary on Achieving Quality in the E-Discovery Process is focused on electronic tools and processes, including sampling and other search methods.

The Commentary Is Not A Recipe Book

This Commentary does not purport to give specific advice on how to maintain quality. So any legal practitioner looking for forms and recipes would be disappointed. Sedona was quite correct to so limit this project. Here is their explanation, with which I fully agree:

This Commentary is not intended to serve as a comprehensive roadmap covering all possible uses of quality measures and metrics throughout the e-discovery process. The creativity of the vendors and the bar will ensure that concrete applications of quality techniques will be advanced. Nor have we any bias towards particular methods, tools or technologies or a point of view that asserts that sampling or other types of quality measures are invariably required in every type of litigation. Indeed, the drafters believe that the solution to problems created by scale are not solved by technology per se, which is merely a tool, but by better use of team leader skills, project management, and quality measures.

Although the Commentary discusses many tools including my favorite — sampling — it does not set out a step-by-step process for handling e-discovery projects. There is too much variability in cases and facts for that, and frankly, it is still too early for any such best practices specifications. Electronic discovery project management is still in its early stages and many of us who have developed methods tend to keep them close to the vest for competitive purposes. Plus, it is not Sedona’s role to endorse one particular technique over another, but rather to address issues on a high level and facilitate further study and dialogue. If you read this Commentary with this expectation, you will not be disappointed. Indeed, you will find that it contains many valuable treasures and insights. As Oliver Wendell Holmes, Jr., said: “A moment’s insight is sometimes worth a lifetime’s experience.”

Oliver. Wendell Holmes, Jr. was the class Poet at Harvard in 1861

Key Elements of Successful Project Management

The Commentary lists seven elements that Sedona considers critical for successful project management. They do not claim that the list is exhaustive, nor do they purport to rank them in importance. These elements are:

1. Leadership.
2. Tailoring.
3. Expertise.
4. Adaptability.
5. Measurement.
6. Documentation.
7. Transparency.

Although Sedona will not rank these seven, I will. I think that Leadership and Measurement are the two most important factors and the two most difficult. A close third is Documentation, which is key to protection, especially if any of the million decisions made in the course of a project prove to be a mistake. The courts do not expect perfection from attorneys, only expertise, reasonability, and good faith. Good documentation of the process can make it easier to recreate what happened. It will help you to convince the court that you thought you were doing the right thing at the time, even though later events may suggest otherwise. Personally, I do not like the documentation process at all and find it to be as odious as filing. But I know from experience just how valuable it can be, not only to later show what you did, but also in real time to help you to keep track of what you are doing.

Leadership is obviously important. Someone has to be in charge of a project and it needs to be an attorney with special expertise. It is a mistake for the trial attorney to try to fill this role because they probably do not have the necessary skills nor time. But it is also a mistake to delegate the job to a non-lawyer. I continue to believe that lawyers must remain masters of the discovery process and they abdicate their responsibilities when they over-delegate to vendors. The Sedona Commentary (at page 7) agrees that attorneys should retain the “Team Leader” position and should only look to outside vendors for competent assistance, which, it correctly states, is “often essential.”

Measurement

confidence_interval_formulaThe importance of “Measurement” may not be as obvious as Leadership, but the Commentary does a good job of explaining just how indispensible it is to quality control. It lists five types of quality measurements that are especially useful in e-discovery:

1. Judgmental Sampling
2. Independent Testing
3. Reconciliation Techniques
4. Inspection to verify and report discrepancies
5. Statistical Sampling

Of these five measures of quality, the two types of sampling are, in my opinion, the most important. The two types of sampling are defined and explained in detail in Appendix A: Sampling 101 for the E-Discovery Lawyer:

Judgmental Sampling: Sampling performed on a sample set that was selected based on the judgment of the person doing the sampling. … A common example in the e-discovery context would be keyword searching itself, which is a more-or less informed technique universally used by lawyers and legal professionals to produce a sample slice of a given ESI universe of data, based on the a priori judgment of those selecting the keyword terms.

Statistical Sampling: Probability sampling, or random sampling, is a sampling technique in which the probability of getting any particular sample may be calculated. … A random sample is one chosen by a method involving an unpredictable component.

RandomSamplingIn the body of the text at page eleven, the Commentary explains that “statistical sampling can serve as a check on the effectiveness of search terms and other automated tools in identifying responsive information.” You can, for instance, use random sampling to test small subsets of the data selected by judgmental sampling, such as keyword culling. Then, by quick reviews of random sample subsets, you can determine the effectiveness of the keywords to identify responsive information. You can then adjust your keywords accordingly and try the new search cull terms again on a new sample. Here is how the Commentary describes this process at page thirteen: “Trial or pilot runs of combinations of words may be tested in an iterative fashion to extrapolate the effectiveness of the chosen set.”

You can use this iterative method to increase the culling rate of ESI to a size where cost projections of final review expenses finally come within the project budget. This use of both judgmental and random sampling methods, coupled with cost estimations, is close to the kind of early case assessment quality control procedure that I have developed to control e-discovery expenses in a legally defensible manner. I would tell you more, but it gets extremely complicated, is case sensitive, and frankly, leads into proprietary territory.

Applying Quality Measures

Part Three of the Commentary, entitled “Applying Quality Measures in E-Discovery,” is probably the section that will be of most interest to practitioners. It divides the analysis into two segments: the Data Collection Phase; and, the Review and Production Phase. The Data Collection Phase is examined in three segments: “Building on Traditional Approaches to Document Collection; Applying Measures of Quality to the Data Collection Process; and, Best Practice Guidelines.”

The Best Practices Guidelines at page fifteen begins with the following good advice:

The selection, organization and filtering of ESI through the use of a search protocol is a critical element in reducing the volume of information to be collected and thus the time and cost of collection. In addition, keyword search techniques are well known and may be used for this purpose. More advanced technologies have emerged that employ complex algorithms for ESI filtering and organization and may, in some cases, be useful at the collection stage. Regardless of the technology chosen, all filtering methods require a well-defined process. Without these basic steps, the use of any filtering technology will likely result in gross over- or under-inclusion of responsive ESI. The process includes several steps:
• Understanding the composition of source ESI;
• Defining the goals of the filtering;
• Applying the filter and testing the results.

On this last filtration/testing step the Commentary makes the basic, yet important point missed by most practitioners still using negotiated keyword searching, that:

The filtering process should be iterative and needs to be repeated until the desired goals are met. It is not sufficient to blindly run a filtering tool and trust that it is achieving the desired results. One must evaluate the outcome of the search, looking to identify errors in how the filter rules were set up or applied. Key metrics, such as the number of included or excluded documents by keyword or filtering criteria, can be used to evaluate the outcome. Examining the high and low number of search hits can uncover issues with how the search was constructed, the choice of terms, or even issues with the data.

Oliver Wendell Holmes Jr. circa 1930No one is good enough to pick good keywords off the top of their head, much less negotiate a good set of keywords. Words are, after all, so malleable and differ tremendously between person to person. As Oliver Wendell Holmes said:

A word is not a crystal, transparent and unchanging, it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and time in which it is used.

Yet keyword search is still the practice used by most lawyers today and is often ordered by the court. American Family Mutual Ins. Co. v. Gustafson, 2009 WL 641297 at *3 (D.Co. March 10, 2009) (“the parties shall forthwith meet, confer, and agree upon the search terms”). This is a mistake. The “skin of living thoughts” is not so easily snared. Testing of proposed search terms should always be required. Otherwise, your review will be haphazard at best, and a complete waste of time and money at worst. As Oliver Wendall Holmes also said: “Lawyers spend a great deal of their time shoveling smoke.”

Quality controls in the review and production phase are also examined at length in the Commentary. The discussion includes: automated methods to reduce the initial burden of review; “clawback” agreements, Rule 502, and reliance on automated methods; quality control guidelines for responsiveness and privilege; and, final quality checking at production.

Conclusion

gibsonThe Commentary conclusion begins with a quote I like a lot by William Gibson: “The future is already here – it’s just not evenly distributed yet.” I know many people in this field feel like that is the story of their life. Certainly there is a wide variation in the U.S. and around the world in how the discovery of written evidence is conducted. The Commentary ends with these fine words of wisdom:

In the end, cost-conscious firms, corporations, and institutions of all kinds intent on best practices, as well as over-burdened judges, will demand that parties undertake new ways of thinking about how to solve discovery problems — including employing better project management and better measures of quality to achieve optimum results, as outlined here. The technical and management-orientated quality processes discussed above need to be incorporated into every trial lawyer’s continuing education and daily practice. These processes also dovetail with, and support The Sedona Conference® Cooperation Proclamation — which calls for incorporation of the best thinking of “disciplines outside the law” to achieve the goal of the “just, speedy, and inexpensive” determination of every action. In the end, striving to attain a quality outcome in the conduct of litigation is consistent with the highest ethical calling of the legal profession.

I agree with these noble aspirations, but think it is unrealistic to think that these processes will, or even should, “be incorporated into every trial lawyer’s continuing education and daily practice.” Not every trial lawyer will be interested in random sampling, iteration, linguistic analysis, the latest concept-search engines, ESI architecture, leadership of complex e-discovery projects, and ESI architecture, not to mention the ever changing technologies that create and store electronic information. I agree that all trial lawyers should have some exposure to this and to the idea of quality control, in the same way that all lawyers should have some exposure to antitrust law. But I doubt very much that the subjects in the Quality Commentary are going to be part of “every trial lawyer’s daily practice” anytime soon (if ever). Instead, they will be front and center in the practice of attorneys who specialize in e-discovery.

In the inconsistent future here-now that I see, e-discovery specialists will work closely with trial lawyer specialists. Team-work will be common, even on small cases. Some trial lawyers may have the time and inclination to handle e-discovery themselves, especially in less complicated situations. But, for the foreseeable future, they are likely to be few and far between. As William Gibson says: “Time moves in one direction, memory in another.” Instead, most trial lawyers will work with, not replace, the e-discovery lawyers. This could be a very small team of just two persons, like Perry Mason and Paul Drake, with a clear division of labor and skills, or, in the largest cases, it could be a team of many lawyers, paralegals, technicians, engineers, and information scientists.

The new age of information is too complicated to continue the old practices and traditions where both trial and discovery skills were combined and held by all trial lawyers. It worked when the documents were paper and few in number. But those days are nearly gone. Now we have ephemeral electronic paper that throws itself away when you are not looking. We have needles of relevant evidence hidden in vast electronic haystacks that are larger and more complicated that you can imagine; haystacks that daily change and grow. As our best experts tell us, search is hard. To use Gibson’s words:

I don’t have to write about the future. For most people, the present is enough like the future to be pretty scary.

As a consequence, document discovery is far more complicated than it was before and requires special skills to be done right. It is time for the profession to change. As Justice Holmes said:

I find the great thing in this world is not so much where we stand, as in what direction we are moving — we must sail sometimes with the wind and sometimes against it — but we must sail, and not drift, nor lie at anchor.

The basics of e-discovery can and should be taught to all trial lawyers. Since they are generally a very smart group, they can learn the basics, if they will take the time and effort needed to do so. (So far, not many have been inclined to make this effort. Most seem to hate e-discovery, but this will change soon.) These basic skills, once learned, can suffice for many small cases, with just an occasional assist from a 21st Century version of Paul Drake. But the larger, more important cases will need the skills of a specialist; skills such as those outlined in The Sedona Conference® Commentary on Achieving Quality in the E-Discovery Process.

In today’s world of dispute resolution, the client with a sophisticated matter is better served by specialized services with a division of labor. The e-discovery lawyers will possess the skills and quality control techniques discussed in this Commentary, as well as the many other skills discussed in the many other Sedona Commentaries and other books and articles on the subject. These skills take time to learn and time to practice and maintain. There is not enough time to also learn the many, very different skills needed by a trial lawyer. As a result, in complex cases the discovery lawyers will go through the electronic maze to find the facts and their trial lawyer partners will present them to the court and argue their significance.

Litigation is already a team effort in most law firms. This trend will continue to grow and the clients will be better served because of it. Far from being more expensive, as you might think because more people are involved, the discovery and trial lawyer team will save money. The Fannie Mae type cases of outrageous e-discovery expenses only happen when trial lawyers dabble in e-discovery and make huge mistakes. A true specialist will not only do things right the first time, with quality, but do them quicker and less expensively. In this way, the e-discovery teams of the future will help preserve our system of justice by making discovery affordable again.

MANDATORY READING ASSIGNMENTS. Read The Sedona Conference® Commentary on Achieving Quality in the E-Discovery Process and The Sedona Conference® Best Practices Commentary on Search & Retrieval Methods. Finally, read the EDRM Search Guide. (You may skip the Blair Moran article and the Curse of Thamus article.)

NON-MANDATORY ADDITIONAL READING AND EXERCISES. For a discretionary extra read, find and look at Appendix Two to the EDRM Search Guide. (No, you do not need to understand the math on statistical sampling you will find in the Appendix.) How many sampling entries do you have to make to provide an estimate of +/- 5% with a confidence interval of 95%? (Sounds harder than it it, and this is a terrific thing to know.)

Additional Non-Mandatory Supplemental Reading: Find and study an article on project management and e-discovery.

OPTIONAL EXERCISE: Come up with another quote by William Gibson that is appropriate for e-discovery. Share the quote and the reason it applies with Ralph Losey and everyone else in a comment below. Most all of us like science fiction. If you strike out on Gibson, but like SciFi, come up with a quote from another SciFi writer. Try following Gibson on Twitter. He is very active.

Students are invited to leave a public comment below. Insights that might help other students are especially welcome. Let’s collaborate!

Copyright Ralph Losey 2015


 

Ralph Losey is a practicing attorney who specializes in electronic discovery law. He is a principal in a U.S. law firm with over 50 offices & 800 lawyers where he supervises electronic discovery work and litigation support. Ralph has written over two million words on law and technology, including six books on electronic discovery. His latest books are "E-Discovery for Everyone" (ABA 2017) and "Perspectives on Predictive Coding" (ABA 2017) (ed. & contributor). His blog is widely read in the industry: "e-DiscoveryTeam.com." Ralph is the founder and principal author of "Electronic Discovery Best Practices" and "e-Discovery Team Training," a free online course covering all aspects of e-discovery. Ralph's sub-speciality is the search and review of electronic evidence using multimodal methods, including artificial intelligence. He also has a free online training program to teach these advanced methods - the "TAR Course." Ralph has devoted a month of his time each year since 2013 to research and test various AI-enhanced document review methods. In 2015 and 2016 Ralph and his Team participated in the TREC Total Recall Track experiments sponsored by the National Institute of Standards and Technology. Ralph has been involved with computers and the law since 1978. His full biography is found at RalphLosey.com. Ralph is the proud father of two children, Eva M. Losey and Adam Colby Losey, a high-tech lawyer married to another e-discovery lawyer, Cat Jackson Losey, and, best of all, Ralph has been married since 1973 to Molly Friedman Losey, a mental health counselor and life-long friend.

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