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.

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.

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.

Sophisticated software can help lawyers, not replace them

On March 5^th, the New York Times published an article entitled “Armies of Expensive Lawyers, Replaced by Cheaper Software” which discussed the “new e-discovery software that can analyze millions of documents in a fraction of the time, and at a fraction of the cost consumed by human lawyers, even deducing patterns of behaviour”.   It discussed the explosion of electronically stored information, the technology used to analyze that data and how all this has disrupted the legal job market.

The article provided a clear and concise overview of the new systems available to assist legal teams.  However, the conclusion that these technologies will replace “expensive lawyers” misses the mark. All of the technologies mentioned in the article require a combination of machine and human interaction in order to operate. Humans have to “teach” the computer to identify relevant information. As with any educational process, the more highly skilled the teacher, the better the lesson will be. What the technologies will replace are lawyers working at very basic levels without a strong understanding of the case.

Although the new technologies will force lawyers to learn new ways to approach document discovery, the technologies are just one cog in the legal machine. Lawyers still need to understand the content of the documents to build their case. The new systems will help lawyers to zero in on the documents containing the relevant content.

No matter how sophisticated a computer system gets, it can’t make subjective evaluations. The legal process is not black and white – it’s ultimately based on judgement and inference. As a result, it will always require highly skilled talent.

Bells and whistles are for bikes, not e-discovery solutions

All too often, decisions on what e-discovery solution to implement are based on flashy sales presentations and vague explanations of how the systems function. Rarely does the end result surface in the decision making process.  More often than not, the bells and whistles of the product tip the scales.

While a good user interface and flexibility in creating search criteria help to improve the usability of a product, there are other aspects of the product that are equally important, such as:

• The ongoing operating costs – even if the software is purchased outright, that cost needs to be amortized over the life of the product. Many systems have annual maintenance fees that can add up to 25% yearly to the cost of the product. Some products come with a volume fee as well. Since e-discovery vendors are generally much more efficient (due to significantly larger volumes of work) than law firms when it comes to dealing with ESI, many law firms find that they can’t pass the full capital and operating costs of their in-house software onto their clients.
   
• IT support – law firm IT systems are set up to mainly support the storage of documents. This usually involves relatively little ESI storage space, compared with storing a client’s data during a review (which can run into the hundreds of gigabytes or even terabytes). Although adding storage space is not technically taxing, supporting that added space with the existing IT staff can be a challenge.
   
• Collaboration – e-discovery solutions are purchased to handle the review of large numbers of documents. This by its very nature necessitates a team approach to the document review project. While collaboration and project management features of software solutions are important, equally important are the network resources required to ensure that each reviewer has sufficient access to allow them to achieve the desired efficiency. A stellar review platform can be rendered unusable by slow network performance.
   
• e-discovery expertise – an e-discovery solution is just a tool. How that tool is used depends on the capabilities and knowledge of the person wielding it. Craftsmanship and expertise is just as important in e-discovery as it is in furniture building.

It’s all about the end result, not about making the journey in style.  Too often, the ultimate process that needs to be completed is not well defined, leading to decisions that don’t work or are so complicated that the new tool never achieves widespread acceptance in the workplace.

Don’t be drawn in by the rhetoric of gurus. So-called authorities all too often focus on the fluff of theory, paying more attention to the means than to the end. There are people out there who talk about e-discovery but aren’t actually working in e-discovery on a day-to-day basis. They will tell you in theory how to do things, but you’ll spend many moons actually figuring out how to do it yourself.

When you need to get from Point A to Point B, consider whether a Chevrolet can do the job as well as a Porsche.  Wortzman Nickle can show you the way.

Translation Required: E-Talk

New e-discovery products are coming to market on almost a weekly basis. They serve different functions and fit into different parts of the EDRM model (notionally being: preservation, identification, collection, processing/culling, review, and production). In researching these options, we are learning that the terminology used by forensic companies is often as diverse as the products they are selling. 

In particular, the term “review” is causing some confusion. In the legal context, “review” means the fifth stage in the EDRM model referencing the “lawyer review”. This is the phase after collection and processing/culling when lawyers review and code the records for relevance, privilege and to issues codes. At the review phase, we look for a robust review platform that allows customized coding fields and the integration of near de-duplication and/or concept clustering software. These features save our clients significant time and money as they avoid a linear review. 

However, in the forensic context, “review” often means the ability to view records (images or in native format) during the early case assessment or processing/culling phases. 

Does this potential conflict in e-terminology matter? Yes.  Suddenly, a solution billed as “end to end” is actually an early case assessment or processing tool – one which will require an export of data to an appropriate (but different) review platform down the road. This can mean an increase in time and cost for the litigant company – the one that believed it had purchased a single “end to end” e-discovery solution.

The lesson learned is this – ask lots of questions and clarify the terminology at every stage. Alternatively, call Wortzman Nickle and we’ll help you with the e-translation.

To In-source E-Discovery or Not – A Series of Corporate Questions

Since e-discovery is clearly here to stay, should its processes be handled internally or outsourced, or a combination of the two?

Many of Wortzman Nickle’s corporate clients are facing this dilemma. Finding the right answer is not simple, requiring a combination of legal and technological experience, plus top-down/bottom-up corporate initiatives.

The bottom line? Get everyone speaking the same language (not an easy task) and ask lots of questions, including the following:

1.         What is the volume of litigation in the corporation – can the expense of additional technology and perhaps staff be justified?

2.         What e-discovery expertise do existing in-house counsel and staff have?

3.         Who is available to project manage the e-discovery processes as well as any technology purchased for in-house use?

4.         Are there people in-house with an ability to stay current with legal developments and new and emerging technologies?

5.         How is employee productivity going to be impacted?  Legal and IT professionals, despite having e-discovery expertise, may be too busy to take on the entire process on top of regular responsibilities.

6.         What e-discovery expertise does external counsel possess?

7.         What technology will best work with the existing IT infrastructure?

8.         Does the corporation need an “end to end” solution to manage preservation,  identification, collection, processing/culling, review and production of records, or will some aspects of the process (ie. processing and/or lawyer review) be outsourced depending on the file?

9.         Will the solution you are contemplating allow for valuable software add-ons when required, such as concept-clustering or near de-duplication software, which may significantly simplify and reduce the costs of the lawyer review stage?

These questions all require careful consideration.

Selecting the right technology solution is central to the decision-making process. Many of our clients are reporting that they are overwhelmed with options, receiving numerous calls per week from forensic and e-discovery vendors wanting to pitch their in-house e-discovery solutions. 

How to best navigate these calls?  Wortzman Nickle can assist you. We are speaking with many of these companies to better understand the strengths and limitations of the various products and where they fit into the EDRM (Electronic Discovery Reference Model).  One cautionary consideration: an “end to end solution” may not be what it appears, so ensure your terminology is clear and evaluate your options carefully.

In the end, there are many solutions available. For some corporations, some aspects of the e-discovery process can be effectively managed in-house, while other processes may be better outsourced, depending on the litigation. Mostly commonly, it is a hybrid of the two that works best for most companies – providing both the stability and cost-effectiveness of in-house capabilities with the flexibility to apply new technologies as required.  One size does not fit all.