Legaltech has a great buzz this year. The word is out, and it’s “Predictive Coding.” The panels on predictive coding, or technology assisted review are packed. Overflowing. The “tipping point” is here it seems. Information-hungry attendees are eager for clarity around the process. What is it. When to use it. When not to use it. How to explain it. How to use it. Pitfalls to avoid. And so on. They got some of the answers they wanted.

Technology assisted review is a process based around technology. Just as with “transparent search,” its results, in terms of cost and risk reduction, are as good as the people and process involved. With a clearly defined use-case, a strong iterative process, buy-in from both counsel/parties, a team of experts to train the tool, and verification of the results, it is possible to run a review cost-effectively and with better results, i.e., with both higher precision and higher recall. That’s the good news. The bad news is that much confusion still exists. I attended a panel titled ‘eDiscovery Process Validation Sampling – How Confident Can You Be in the Results of Your Process?’ It was clear early on that none of the panelists understood the topic; in fact they pretty much avoided it altogether. In addition, the industry is using technology assisted review in many different matters, and at many different stages of the process, and for various different reasons. When these mists clear the adoption rate will grow dramatically.

SFL Data spent two days last week at the 2011 Georgetown Advanced eDiscovery Institute. The 8th edition of this great conference offered a packed lineup of industry luminaries, including many of the judges who have authored significant eDiscovery opinions in recent years (including Scheindlin, Facciola, Grimm, Rosenthal and Peck). The sold-out conference’s speaker panels raised lots of thought-provoking (and cutting-edge) issues, and provided a glimpse of where our industry is headed in years to come. We wanted to share some of the highlights:

Cooperation and Reasonableness Remain Your Best Guidance Regarding Data Preservation Obligations
Data preservation (and the challenge of pinpointing triggering events) clearly remains a source of great consternation for corporations and counsel. Questions and discussion abounded at the conference in this area. The risk of sanctions (and their related stigma) related to data preservation leave parties hungry for clearer guidance about their obligations. Unfortunately, the bright line guidance they so desperately desire is not easily achieved. The Hynix and Micron rulings related to Rambus’ data destruction don’t provide much (or any) additional clarity here, as the Federal Circuit merely affirmed the existing language that preservation obligations are triggered when litigation is “reasonably foreseeable.” Furthermore, several of the judges at the conference contended that bright line guidance will never really be possible, and that judgment calls will always be needed as companies evaluate whether and when to preserve or destroy electronic data. Rather, the judges advised that companies should continue to focus on “reasonable” behavior and on demonstrating cooperation with the other side. The judges reiterated a viewpoint here that was expressed in Zubulake, namely that you should take note at the moment you are tempted to label documents or correspondence as attorney work product. That is a very good sign that your preservation obligations have just been triggered.

Temper Your Expectations For How Much Any Amended eDiscovery Rules Will Change the Game
One panel discussed at length the recent and ongoing work to evaluate the proposals and comments for possible amendments to the existing civil rules governing eDiscovery practice. Judges Grimm and Rosenthal lauded the participants of this process for the analytical depth and quality of the comments that have been submitted. These materials are available on the U.S. Courts website (www.uscourts.gov). The judges cautioned, however, that we should temper our expectations about how much any rules amendments can really do. The judges reminded attendees that under the Rules Enabling Act, rule amendments cannot change substantive law, and that any changes will take a long time to enact. Judge Rosenthal suggested that more rapid and impactful changes will likely be brought about by the various pilot programs now in use (e.g. in the 7th Circuit, the Western District of Pennsylvania, and the Southern District of New York).

“Location-Based eDiscovery” — the Cutting-Edge Issue You Probably Have Never Heard of
Most of us have eagerly adopted the new technologies provided by iPads, smartphones, and social media. Yet few of us have stopped to consider the potential privacy impacts of these technologies, not to mention the plethora of possible eDiscovery applications for this type of data. So-called “location based eDiscovery” includes things such as GPS history data (stored on your handset device), cell tower data (kept by carriers, and allowing triangulation of where an individual is or was at a particular point in time), wi-fi logs, near-field communication (e.g. paying for a coffee with your smartphone), and uplink time differential of arrival (UTDOA). David Isom, a former Greenberg Traurig partner now in solo practice in Salt Lake City, presented on these topics. He predicted that if you have not yet dealt with location-based eDiscovery, you will soon (or that you should). We can point you to the paper he published on this topic here: www.isomlawfirm.com/location-privacy.php. Location-based eDiscovery issues are also present in the much-watched Jones matter currently pending before the U.S. Supreme Court.

Analytical Tools for Document Review Already Surpass Manual Human Processes, and Will Only Get Better
It seems that much of the recent literature about topics such as predictive coding and automated review has emphasized whether and when these technologies would be ready for everyday use on active cases, as well as concern over whether they are defensible. The conference panel that addressed analytical review tools shared a different message: it is already here, it already works better than manual human review, and you should be using it now. The panelists summarized various research showing that manual human review is approximately 70% accurate at identifying responsive documents across a population. And that machine-assisted review using analytics software can already be 80% accurate or more, while saving tremendous time and cost. They emphasized that you should not wait for automated review technology to become “perfect,” in light of the fact that the existing, manual human review processes are already far from perfect (one panelist went so far as to say that existing, manual human review is “bad”). The panelists shared that in defending your use of automated review, you need to focus on demonstrating the defensibility of your process, as opposed to the defensibility of any particular automated review technology.

Did you hear the news? SFL Data was recently selected as one of the “Top 100 Fastest-Growing Private Companies” in the San Francisco Bay Area for 2011 by the San Francisco Business Times. We had a blast at the gala awards ceremony, where we were honored for demonstrating a 71.3% increase in revenue growth from 2008 to 2010, ranking 61st out of 100 Bay Area companies. Publisher Mary Huss said, “What a credit to these outstanding companies that they have shown such noteworthy growth in the years from 2008 to 2010 – years that many companies were thrilled to stay flat.”

So what does our fast growth mean for you? It proves that more and more Fortune 500 companies and AmLaw 250 firms are recognizing the advantages of using fixed-price e-discovery managed service to get defensible results, reduced costs and greater control without having to build the function internally. To learn more about it, register now for “e-Discovery Data Collections in 2011 and Beyond,” taking place on November 9, 2011 from 9:30-10:30 a.m. PST.