E-discovery blogs, articles and tweets often discuss the value of co-operation between opposing counsels regarding e-discovery strategy development and execution. What is less often discussed is the need for cooperation between parties on the same team.  Such co-operation could unlock huge value for corporate America.

The e-discovery industry ecosystem has some interesting in-built tensions. In some sense, everyone competes with everyone else. Take the following, highly common, situation.  A corporation hires a law firm, and separately an e-discovery service provider, asking the two to work together on a matter (or series of matters).  The law firm has internal capability to handle some, but not all, of the functions that the e-discovery service provider has been contracted to deliver. The software being used through the process is currently licensed by the service provider.  The software parent company is actively selling the software directly to the end corporation (and the law firm for that matter), downplaying (dramatically) the required investment in people, training, and technical support required to make it sing.  The corporation itself is handling part of the process (especially on the front end) and is evaluating its own internal capability and delivery in the e-discovery space. At the outset of the matter, few “lines in the sand” are drawn as to exactly who is going to be doing what.

Sound far-fetched?  It’s more like the norm.  What’s the result?  Everyone looking over their shoulder. Less information sharing than there should be. Excitement at “catching the other party out.” An atmosphere of tension and tentativeness, rather than of passion for excellence and partnership. I talked with someone working for a competitor of ours managing a large-scale litigation. I said, on a scale of 1 to 10, how are you doing?  His answer: “The corporation loves us – it’s a 9.  The law firm?  It’s a 1.”  That can’t be good.  Value is being destroyed in terms of wasted time, additional cost, and unnecessary risk. 

What’s the answer?  We can take some guidelines from game-theory.  I was an economics major.  It’s all a little hazy now, but I remember the Prisoner’s Dilemma http://en.wikipedia.org/wiki/Prisoner’s_dilemma.  The situation demonstrates how people often don’t cooperate, even when cooperation is in their joint best interests. Cooperation becomes more likely with repeated games, rather than one-shot games (so that trust can be built up), and with better signaling of intentions and actions (so parties know what the other is going to do).  Repeat litigation corporations should move away from one-off / fragmented models, and settle on a “repeated game solution” for their e-discovery, with (in my opinion) a single e-discovery provider contracted over a significant period of time.  Similarly, law firms representing the more one-off litigants should do much less provider-switching and much more process integration work with their e-discovery support teams. Finally, in all cases, roles and responsibilities should be clearly delineated – or “signaled.” Make it clear who has ownership for what, and why. Have each player play to their strengths, focusing on where they are world class.  The drive to predictive review may be a fundamental industry shift, but at least as fundamental is the industry’s need, led especially by corporations as the ultimate clients, to drive towards cooperation.

Following on Sonya’s well-articulated entry from last week, I wanted to revisit the underlying legal premise that often determines the decisions we make during legal discovery: reasonability. By my count, the term “reasonable” appears 121 times in the Federal Rules of Civil Procedure, but how many of us really understand the impact that reasonability has on the discovery process?

 Reasonableness acts as an undercurrent throughout the civil judicial process but often is pressed to its limits in discovery. Closely related to the concept of “dual proportionality” (more on that in a future post); reasonableness governs our decisions by, ostensibly, comparing our actions and decisions to those of the fictitious “reasonable person”. In practice, however, we often find ourselves checking our decisions against what a judge – and most often a magistrate judge – would consider reasonable in light of the conferences that he has attended and the propaganda that he has heard. The standard varies widely. I rode the elevator the other day with a judge who stared blankly at me when I told him I worked in electronic discovery and asked, without a hint of sarcasm, whether this was a legitimate part of the legal field (a reasonable question if ever I heard one). Compare that to U.S. Magistrate Judge Peck’s, decision in Da Silva Moore, in which he shows a basic understanding of assisted document review technology but displays a deep and inherent understanding of reasonableness in light of the parties’ agreements and the technology available. With a judicial spectrum of understanding that broad, it’s no wonder that litigators often wish that electronic discovery would just go away.

 Ultimately, reasonability is what the Sedona Conference clumsily attempted to address with its Cooperation Proclamation and it is what the Rules Committee intended when it amended FRCP 26(f) et seq., to include – among other things – discussion of the form of document production and issues related to the discovery of electronically stored information. From my own experience, details relating to electronic discovery are rarely ever discussed in anything but a cursory way during the 26(f) conference today, in sharp contrast to 2007 and 2008 after the rule was promulgated.

 We are told repeatedly through law school that “reasonable minds may differ” and it is this point that makes cooperation such a persuasive motivator. If counsel can meet-and-confer in order to agree upon basic, discovery procedures, such agreements are per se reasonable and rarely subject to judicial intervention, much less reversal. This holds true for many phases of discovery, from preservation strategy and collection methodology to search term iteration and review protocols. So back to Sonya’s post from last week: it doesn’t matter which door you choose; in sharing your proposed approach to review (technology-assisted or otherwise) your attempt at cooperation will enhance your position of reasonability. Even if reasonable minds differ on the proposed approach, your position is not harmed – and probably strengthened – by attempting to confer with your opposition and achieve cooperation. If cooperation can be achieved, then you have furthered the case and saved your client money. If not, the judiciary is still the final arbiter and your attempt at cooperation will paint your proposed approach in the most reasonable light.

Technology Assisted Review (TAR) is a hot topic at the moment and it is getting mixed up with the question of whether humans are being replaced by machines. I think the answer lays somewhere in the old game show, Let’s Make a Deal. Human review won’t go away, technology won’t go away, but the real question is how can we make the best use of both humans and technology?

Using three document review examples, let’s see how technology and humans can be used and in what combination:

Door #1 – Linear review with 600 Reviewers

Many law firms and vendors have set up review shops with human reviewers or processes for linear review where every document is reviewed for a responsive call or privilege call. This method is also called the “eyes on every document” approach. It’s what has been done in document review for a very long time. Technology can be used with linear review to track your documents and decisions or to help tag or help cull documents to be reviewed because they meet a certain parameter (i.e. the selected set of custodians, date range or it comes back as a key term positive match). This method is time consuming and expensive.

Door #2 – Targeted Review with 60 reviewers

Corporations, law firms, and vendors also use a pared down approach employing technology to help with some aspects of the document review. This method can also be described as targeted review. Targeted review involves technology that will cluster or cull data into groups so that the data can be reviewed in a targeted, rather than linear, manner. Targeted review allows data to be coded in a threaded fashion for emails, or through groups of related documents in clusters, concepts, or batches. This method also involves some type of sampling to make sure that batch coding is being done correctly. This method doesn’t require a lot of set up on the front end and is time consuming during the actual review; but, efficiencies are built in to make it more efficient than linear review. Targeted review is also less costly than linear review because it can be done with fewer reviewers and reviewing “like” things together makes the review go faster.

Door #3 – Automated Review with 6 reviewers

Automated review involves more of a focus on technology with sophisticated input up front from the case team and subject matter experts. A spectrum of technology-based solutions can be deployed to automate as much or as little of the document review process as you want. Technology can involve the use of categorization or clustering and can involve linguistic or statistical methods to do so. This type of review is often referred to as automated review, technology assisted review, or predictive coding. (Although many use these terms interchangeably, they all mean different things to a linguistic or search and retrieval scientist.) This type of review can be done using a few reviewers and software, plus sampling to do the entire document review. Time and money efficiencies are built into this model. Note – The biggest change money-wise for this model is that the bulk of the money spent for document review is on the software or vendor running the software rather than the law firm or review team.

As you can see, no matter which door you choose, there is a mix of people and technology involved. Nowhere in any of these examples are humans left out of the picture! The question frequently asked is “Is technology replacing humans?” I think the answer is “No, just displacing low level human input.”

• It’s about efficiently and effectively deploying technology; Find the right tool for the right job whether it is culling, targeting, or segmenting data.
• It’s about efficiently and effectively deploying the people resources you have for your case; Find the right law firms, review firms, (outsourced or in-house), or vendors.

One quote I ran across recently made me pause: “In fact, many law firms are more comfortable hiring temporary reviewers or outsourcing the review to professional review attorney firms.” It’s a sad state of affairs if law firms are more comfortable outsourcing eDiscovery to foreign (US trained) lawyers or to contract/temporary attorneys rather than using a tool or technology that can eliminate the need for either one. Or worse yet, the law firms choose one tool for all eDiscovery services no matter what the size or content of the data is.

Looking at document review and how it involves humans and technology can illustrate the point that no matter what process you choose to review documents, it will be a mix of humans and technology. How it is mixed, is your choice. Human reviewers aren’t eliminated with automated reviews technology (or processes), although their presence is significantly reduced from the linear review model. The more sophisticated the technology used in document review, the more subject matter experts, case experts, and higher level expertise is required; which is a good thing because I don’t know anyone who went to law school to do document review as a living.