LegalTech 2012 Wrapup

We finished our three days at LegalTech and have safely returned to Toronto. Our general impression was that there have not been any monumental changes in the e-Discovery technology industry since last year.  While there was some consolidation of products and vendors, the software systems available to litigators to deal with electronic records are pretty much the same as last year.  We did see some refinements and improvements in previous year’s new innovations, but nothing stood out to us as the next e-discovery solution.

While products were not much changed, we did note a change in the way the products were promoted.  Many vendors began their sales pitch by telling us why their competitors’ products did not work, and only their own products could meet our requirements. Perhaps this was due to it being a primaries year in the U.S., or it was a result of the lack of progress in software design since last year. Whatever the reason, it did somewhat dampen our overall experience. We most appreciated the vendors who proudly demonstrated their own wares without slamming the product next door.

The lack of real innovation may be due to a maturing e-Discovery industry. But, we are still optimistic as both products and processes continue to improve.  The goal remains to develop solutions to reduce  the cost and effort to identify, collect, review and produce electronic information.

LegalTech Day 1

The annual e-discovery and legal technology show kicked off yesterday morning. WortzmanNickle were there to see what’s hot, what’s not and what’s the same.

As expected, Predictive Coding led the charge of buzz words once again this year. Many vendors offered their flavour of machine learning technology. However, some vendors appear to have realized, as we have, that Predictive Coding alone will not solve the dilemma of ever increasing e-discovery volumes and ever decreasing budgets and timelines. These forward thinking software developers are now integrating Predictive Coding into a package that includes all the tried and true e-discovery technologies, such as concept clustering, near duplication, email threading, and our trusted friend, keyword searching.

While there are many claims of unique Predictive Coding approaches, they all generally fall into one of two main categories – either quickly teach the computer up front what you’re looking for and then have it find your relevant documents, or let the computer observe as you search and find relevant documents using other methods, so that it can subtlety influence the result and present you with more likely relevant documents to review.  Both methods should theoretically end up with the same results.

Wortzman Nickle will be exploring these two approaches over the next couple of months and report in upcoming blogs and papers on the costs and benefits of each methodology.

Records Management: If the U.S. Government Can Get Its (White) House in Order, So Can Your Organization

“Proper records management is the backbone of open Government”, according to a press release dated November 28, 2011 from The White House Office of the Press Secretary.  We couldn’t agree more.

Decades of technological advances (along with a few spoliation issues, problems responding to information requests, and a pending sanctions motion or two) have led the United States Government to plan significant records management reforms.

Noting that the proliferation of technology and electronically stored information has “radically increased the volume and diversity of information that agencies must manage”, the U.S. government plans to develop a “21st-century framework” for records management, citing the following benefits:

- performance improvement

- the promotion of openness and accountability by better documenting agency actions and decisions

- lower costs

- better management of records (fewer lost records) and easier to use and share

- reduction in redundant efforts

All of these benefits apply in the private corporate context as well. In any event, if the U.S. government can prioritize and execute defensible records management, your organization can too.

e-Discovery Undersized

e-Discovery conjures up visions of millions of documents and cases that cost hundreds of thousands of dollars. Although these are the cases that make the headlines, the average litigation typically involves less than 10,000 records, or about one gigabyte of electronic data.

When law clerks describe “a small document” collection, the usual approach is to either print everything out for review, convert everything to tiff images, or review the native files without any special, e-discovery tools. As anyone who reads this blog (and countless others on the net) knows, these are the least efficient, and most costly methods, regardless of the collection size.

While it will not cost hundreds of thousands of dollars to deal with a small volume of electronic information, e-discovery methodologies developed for large document cases, including near duplicate and email thread grouping, statistical sampling, predictive coding, and content analysis, can be equally applied to small cases to ensure that the overall discovery cost is as low as possible.

For example, a 10,000 record collection would require a review of about 400 records in order to apply predictive coding or statistical sampling. Given the current pricing of the various predictive coding solutions, it would cost under $500 to analyse this data. Combine that with about 10 hours of lawyer time to review the 400 documents, and you would have your records all sorted and prioritized. You can then shave off the ones that are likely to be irrelevant, skip the ones you’ve already reviewed, and probably spend another 10 hours or so reviewing the rest. Compare that to the cost to print out 10 bankers boxes of paper, along with the manual (and tedious) lawyer review, and you can clearly see how this approach can save thousands of dollars and millions of brain cells.

Wortzman Nickle can add value to any size case. Call us to find out how.

e-Discovery Roadmap Given to New York Lawyers

While the U.S. Federal Rules of Procedure (amended in 2006) provide meaningful guidance to parties and their counsel in federal court, e-discovery rules at the state level, described as “underdeveloped and uneven” have left lawyers “lost” in the area of e-discovery.

The New York State Bar Association has come to the rescue with comprehensive, practical e-discovery guidelines. These 14 guidelines, among the first of their kind at the state level, were designed to assist counsel in navigating the complex world of electronically stored information, and to prevent inadvertent spoliation.

The guidelines place considerable emphasis on preservation and legal holds. Given the number of spoliation cases in the state, perhaps this focus is understandable. Other aspects covered include the reduction of e-discovery costs through appropriate retention and collection strategies, and the importance of counsel understanding their client’s technology. Notably, there is a significant focus throughout the guidelines on the use of electronic tools, and counsel’s responsibility to understand and utilize technology.

While these guidelines do not deviate from known best practices for discovery, they are written in plain English and are very practical. Notwithstanding different rules of procedure in Canada, they have utility for Canadian lawyers as well. We will watch with interest as decisions emerge under these new guidelines.

e-Discovery Technology Enhances the Human Factor, It Doesn’t Replace It

Predictive Coding. Conceptual Clustering. Visual Analysis. Computers that can win on Jeopardy. New technologies related to the review of electronic information are being announced almost daily. It seems from the hype that we will soon have a “press here” button that will give a lawyer all of the relevant documents without any work.

Reality Check: while all of these technologies help to wade through the continually growing volume of electronic information, they are really only options which must be considered by those charged with the management of large volumes of electronic data. Leading edge technology is not for everyone, nor for every case. Even where its application will reduce costs and effort, there must be a balance struck between technology and human resources.

Introducing new technology into any process is fraught with uncertainty. To alleviate some of this uncertainty and ensure that the proper tool is selected for each job, Wortzman Nickle systematically analyses new and existing technological tools that assist in large volume document reviews. We know what technology will provide real benefit in any given situation, and will actually assist, rather than deter, human reviewers to get the job done faster, more accurately, and cost effectively.

Whatever role technology plays in any litigation search, and however sophisticated it becomes, human review will always retain a place alongside the technology as a way of getting quickly and efficiently to the document set that matters. If we leave aside those who sensibly and genuinely see the need to consider all possible ways of handling documents efficiently, there are growing external pressures on the rest to do so; they include increasingly active management by judges, competition with others for client business and,  in some cases, mere survival as a litigation practice.

If you have any questions concerning litigation technology, reach out to Wortzman Nickle for help.

The Perfect e-Discovery Solution?

The process of preserving, collecting, reviewing, and producing records is imperfect. Until all information is solely electronic and is automatically classified when created, it always will be.

Theoretically, considering that upwards of 98% of all information is electronic, it should be possible to find each and every relevant record. However, the ever-increasing volume of digital data continues to outpace our ability to efficiently and accurately deal with this information. The reality of limited time and money demands that parties compromise and accept discovery imperfection.

The problem is well documented: The amount of information subject to discovery in litigation continues to grow at almost unfathomable rates as individuals and corporations generate staggering volumes of information. In 2010, approximately 32 billion non-spam e-mails were sent every day — as compared with the 171 billion pieces of mail delivered by the U.S. Postal Service during all of 2010. In addition, social media posts, status updates, tweets, and blogs, produced from data sources such pads, pods, and clouds, all contribute to this ever increasing mass of information.

The time, burden, and costs associated with identifying and producing relevant records from mountains of information is swamping traditional discovery budgets and holding litigants in an expensive dilemma. Further complicating matters, this problem is expected to be solved in the same amount of time it took to produce documents back in the paper days.

There have been many methods developed over the years to “perfect” the e-Discovery process, such as custodian-directed collection, iterative search terms, early case-assessment, visualization, concept clustering and the newest kid on the block, predictive coding. Each of these methods has its own benefits and risks, but none produce a perfect result.

No matter how reasonable the efforts, how cooperative counsel are, or how advanced the technology is, litigants must understand that some documents will be withheld that are not privileged, some privileged documents may get produced, and some relevant documents may never see the light of day.

This is not a new problem. When paper files ruled the world, the challenge was finding critical documents that existed only within a multitude of storage boxes in some dusty warehouse. Today, the problem is almost the reverse: the chance of any single document getting lost is very small. However, having all that digital information at hand results in documents getting lost in plain sight.

Since we cannot locate, collect, and produce every relevant piece of information, what should we do? Our ethical obligations are no different than they were during the days of paper discovery. Somehow, we need to balance the requirement to produce all relevant information against the practical problems of time and expense.

There are no checklists or guidelines that lead to the perfect solution. The best way to manage these imperfections is to admit they exist, take reasonable steps to reduce them, and protect clients against them by seeking agreements that address the inevitable errors. The more transparent this process is, the more likely the parties and the courts can reach reasonable solutions. Maybe someday computers will be wise enough to save us all from ourselves, but in the mean time, the issues associated with filtering down huge amounts of information to manageable pieces will require technical know-how, foresight, cooperation and patience.

Finding what you Search for

When searching for information, it’s not the “search” that’s important, it’s what you find. According to the analyst firm Gartner, what we once knew as search, is not just search anymore. In fact, it now uses the term “information access” to include a collection of technologies to help you find information, such as:

• content classification, categorization and clustering
• fact and entity extraction
• taxonomy creation and management
• information presentation (for example visualization)

Many of the tools around extraction, classification, and categorization of records remain supplementary to the essential task of organizing information. There are three main ways in which people look for information:

• Pattern Matching – using search criteria with the same physical attributes as the sought after information, such as keyword searching. Pattern matching requires that the found information contains the words or phrases in certain parts (e.g. the title, author, content), and possibly that certain words exists close to each other (e.g. clustering).

• Semantic Web Navigation – an artificial “web” of data that allows machines to understand the semantics, or meaning, of information. Relationships between discrete pieces of information are identified, usually in some sort of visual representation.

• Classified or Categorized, that which is organized by topic browsing. – This is where we use classification taxonomies and related structured organizations of information.

While only the first approach relies exclusively on “search”, the line between search and browse (either by link or by structure) blurs more every day, as clustering and guided navigation enable new ways for lawyers to facilitate useful access to large repositories. At the end of the day, all three approaches rely heavily on metadata. Clearly, to access information properly, first you need to organize it properly.

Wortzman Nickle has spent considerable resources analysing and employing various information access technologies in an effort to maximize data analysis and review efficiencies. For more information, contact us.

e-Discovery Planning

To paraphrase Rudyard Kipling, “If you can keep your head, while all others are losing theirs and blaming it on you – you’ve probably created a good plan”.

In many engagements, Wortzman Nickle is brought into the fray long after work has started. We are asked to take over bits and pieces of what one or more groups of people have been working on. Although we are presented with hard drives, images, backup tapes and paper, very rarely will we be provided with that key ingredient – “The Plan”.

Whether you are in-house counsel, outside counsel or a third party consultant, in many discovery matters, you’ll be brought into a situation and asked to “handle it”. The first daunting challenge that you will face is getting everyone to slow down and reassess.  There’s such a huge desire to keep things moving that no one wants to take the time to sort out exactly what has transpired and try to link that to the eventual desired outcomes.

If you’re put into one of these situations it is important that you’re not pulled in to the overall panic. There are some basic steps to take:

• Take a moment to write down the issues involved and potential outcomes
• Determine how much has been spent already on specific tasks, and whether the results were beneficial to the final goal.
• Set out exactly what human and technical resources are available
• Prepare a written plan of what will be done, when and by whom

To begin, catalogue the issues and resources that are available and to lay out a concise plan for how to track them.

Creating the plan is, however, just the start.  Another important element is in having all the stakeholders sign off on their part of the plan.  Ensure that there is an approval or verification step so that everyone understands their part of the plan.  Insist on getting a response to sending out project files and ensure that there is a single point of contact that will help with tracking all of the affiliated tasks.  A strong project plan needs constant monitoring.

Establish regular updates via email or conference call to ensure that all parties know of project progress. To achieve group collaboration, consider using a shared planning tool. Among other things, this helps cut down the “blame game” emails that tend to work their way around. If you’re sharing project management files, there’s all kinds of great ways using flags and colors (and in some cases even sounds) to alert everyone interested as to who has fallen down on the job, in a timely and constructive manner, so that steps can be taken to bring the project back on track.

Some of these points may seem to be fairly basic or common sense. Nevertheless, as in many areas of life, common sense tends to go out the window when a crisis hits. Taking a moment to assemble a plan, allows you to remain focused on what needs to be done to ensure a successful outcome.

Wortzman Nickle at North America’s Largest e-Discovery Conference!

On Monday, September 19, 2011, Sedona Canada, the Law Society of Upper Canada, the Ontario Bar Association, the Advocates Society and the Ontario e-Discovery Implementation Committee collaborated to present “The Ontario e-Discovery Institute: e-Discovery for All Cases and All Lawyers” in Toronto, Ontario. Reported to be the largest e-discovery conference in North America, over 610 people attended in person or by live webinar. It was a very diverse audience from across the country, illustrating a very real interest in all things e-discovery.

Susan Wortzman and Susan Nickle participated on panels on “e-Discovery Negligence” and “Cost Containment and e-Discovery”, respectively. Other panels featured Canadian and American judges and masters, members of the Bar from across Canada and the United States, vendors and litigation support professionals. This multi-perspective approach led to interesting and spirited discussions about privacy, cost-containment, emerging technologies, and other topical e-discovery issues.

Stay tuned to our blog as we feature some of these issues in upcoming posts!