Personal Highlights from LegalTech 2012:
- Craig Ball calling Ralph Losey an “ignorant slut” (yes- laughing while he said it) regarding Losey’s criticism of the ‘Pippens v. KPMG’ preservation ruling.
- An audience “question” after the “Man v. Machine” panel discussion stating how disappointed the audience member was that ‘Man’ was not represented in the “man versus machine” debate.
- bDiscovery party. Liked the velvet roped off line to get in. Not sure on the overly graphic loud rap music that dominated the gathering. I guess I am getting older!?
- LegalTech is larger and more overwhelming then I imagined. Difficult to choose among the different panels and decide which vendors to visit. Two and a half days seem like a long time until you are actually there and realize you can’t accomplish everything you had hoped to. Hopefully ALM will have me back (thanks for the bloggers pass!)
- No surprise that predictive or technology assisted review was the centerpiece of the exhibit area and the panel discussions. While obviously important, after attending a couple of panels on the subject not sure what else there was to say. Thought some comparisons between the different technologies and information on price would have been interesting.
- Thought there should be more discussion on the search and/or production errors that led to Mt. Hawley and Oracle litigation decisions. Maybe the thought is that technology assisted review will correct those problems? But will technology be used in every case? At least for the near future won’t more traditional key word searches be used for culling or smaller cases? Aren’t there more effective ways to use key words and leverage human review that should be explored?
- My Vendor Highlights:
- KCura’s Relativity: Seems to be everywhere. Numerous companies offer Relativity as a service.
- Symantec’s Clearwell: Looking forward to trying out predictive coding feature (available later in 2012). User interface looks easy to use and statistical information looks really useful and understandable.
- OrcaTec: From brief introduction there predictive coding and concept search looks interesting. Monthly flat fee pricing also intriguing. On list to find out more.
- iConnect: Had short demonstration of their new Xera release. Great user interface. Compatible with IPads which I think would be popular with law firms. Also on list for further investigation.
- Applied Discovery: Seems relieved to be out from LexisNexis family. Looking forward to see what the future holds for them.
- ERM: Provides legal project management software. Seems to be aimed at helping attorneys and law firms become project managers. Am interested to see how would work in an ediscovery management setting.
Top Five Ethical Concerns for ediscovery Lawyers:
Ruth Hauswirth- Director of Litigation and eDiscovery, Cooley LLP
Maureen O’Neil VP DiscoverReady, LLC
- Educate those on IT, Records Management, IT Security, Enterprise, Etc. about an attorney’s ethical obligations. Communication, coordination and compliance are underpinning of preservation.
- Used to be more drive by meet and confers – that is changing. Have to balance need to zealously represent client with need to be open and transparent. Keep outside counsel from over – promising on data production. Make sure outside counsel knows what can be produced easily. Courts starting to give guidance on what should occur in meet and confer. Try to negotiate in good faith.
- Have protective order in place, clawback, and 502 Order in place. Need to look at proportionality. Sometime eyes on every page- sometimes not. Every case can be different- but need to evaluate each case for appropriate technology. Linear manual review is no longer defensible from cost perspective. How outside counsel handles is good indication of competence. Willing to pay outside counsel for thinking about process, searching, culling, etc., this will save money in the long run. Day of paying outside counsel for doc review also over.
- Not obligated to disclose whether using technology to find responsive data. Many times you may want to disclose. Same with search terms- not clear if ethical duty to disclose.
Understanding Automated Review – Utilizing Predictive Coding as Part of your comprehensive Discovery Process:
Craig Cannon- Discovery Counsel, Bank of America
Michelle Spak- Senior Counsel, Duke Energy
Jessica Watts- Discovery Counsel HP
- Intelligent review – Not all or nothing. Outside counsel more willing to use intelligent tech since they are involved earlier in process and have more control over review even though generally law firms are conservative regarding using technology.
- Intelligent review workflow- generally you end up with three groups of documents: definitely responsive, definitely not responsive, and “maybe” documents. QC really important. 15-20% of documents you are still going to have to look at- no text, questionable, excel, etc. Need to analyze data sets first. If firms want eyes on every document then this provides triage.
- Financial industry and other regulated industries i.e. privacy statutes, HIPPA will probably always have to do review unless statutes change.
- Need to have right process in place first. Right now won’t use without other sides consent and have Rule 26f agreement. Do not start with big litigation matter. Need to develop right process first.
First Plenary Session: Man v. Machine
Maura Grossman – Litigation Counsel, Winchell, Lipton, Rosen & Katz
Ralph Losey – Partner and e-Discovery Counsel , Jackson Lewis, LLP
Magistrate Judge Andrew Peck, SDNY
Dean Gonsowski (Moderator) – eDiscovery Counsel, Symantec
- Human review process should not be considered the ‘gold’ standard. Maybe 70% recall and precision. Good for a few documents not over long term with thousands of documents.
- Have courts blessed key word searches? No decisions that Judge Peck is aware of stating key word searches are standard and defensible. Use statistic analysis to validate results. Don’t wait for judicial approval.
- Share seed sets with opposing party? Ms. Grossman is transparent about process but not prepared to share seed sets especially if seed sets contain key documents provided by client. Not required to produce or disclose non-responsive documents.
- Use on small case or maybe incoming documents for first time. Internal investigations or for filtering out irrelevant documents also good use and good place to start. Use reviewers to QC responsive or privilege documents. Hybrid process- man and machine.
Computer Assisted Review: Streamlining document review in the information age.
Maura Grossman – Counsel, Wachtell, Lipton, Rosen & Katz
Laura Kibbe – Managing Director, Epiq Systems
Magistrate Judge Andrew Peck, SDNY
David Shonka – Deputy General Counsel, FTC
- Three General assisted review workflows: 1) Expert seeding; 2) Active learning- computer chooses seed sets- system learns and provides different seed sets for review; and, 3) clustering where technology identifies groups of likely responsive documents for review.
- Insurance policy to let other side know what you did and if you used technology assisted review. Better if both parties cooperate and have comfort other party is doing it right. Judge wants to know reputable company and there is some science behind it – doesn’t need details behind. May need to show seed set including non-responsive docs. In England both parties involved in tagging seed sets process. Might be more productive to show documents tagged as non-responsive from seed sets. Maybe sample of the rest? Need to show didn’t game the system.
- Need for openness greater then under paper discovery. How do you know other side hasn’t tagged all exculpatory documents for example? Needs transparency on both sides. Not about trust- sides can disagree about responsiveness.
A GC Nightmare: A US ediscovery request into Europe. Part 1
Craig Cannon – Assistant General Counsel, Bank of America
Rich Chandler – EVP Chief Legal Officer, CB&I
Chris Dale – The eDisclosure Information Project
Magistrate Judge Frank Mass – US District Court SDNY
Browning Marean – Senior Counsel, DLA Piper
Vince Neicho – Litigation Support Manager, Allen & Overy LLP
Farrah Pepper – Executive Counsel, GE
Master Steven Whitaker – Senior Master of the Senior Courts of England
- Release last week EU data privacy regulation 4 pillars: 1) Right to be forgotten; 2) Transparency; 3) Privacy by default; and, 4) Protection regardless of data location.
- EU Rules do not have direct effect- countries have three years to pass laws. Rule is a floor not a ceiling. Goal to make data transfers between countries easier. Have to know each countries rules. Tension between common low versus civil law (no discovery). Civil law does not recognize common law tradition. More of a tradition of locking data up and not sharing.
- Judge Maas reviewed two relevant cases: Societe US 482 US 522 by Stevens. Plane crash and Defendant sought to use French discovery rules. Defendant said they would expose themselves to French prosecution if they produced documents in the US. In Re Global- potential producing party –Dutch entity. Sought documents in Netherlands, Belgium and France. Said French blocking statute wouldn’t allow production. Under Hague convention- letter of request – takes a long time and compliance mandatory or letter of commission- easier but compliance not mandatory.
- Factors US Courts must consider:
1) Importance of documents
3) Whether information originated in US
4) Alternative means of securing information
5) Extent to which non-compliance would undermine US interests or undermine laws of foreign country
6) Good faith of parties
- There are several challenges with international e-discovery. US courts versus EU data privacy. How to comply with US preservation if email in EU. Generally can’t get e-mail from EU. But if US Court requires has to do something. Act of preservation is considered processing. Preservation puts them in violation of EU laws but can’t wait for EU ruling or e-mails might be auto-deleted for example.
- Legal advice from outside counsel perspective: critical to hire local privacy counsel. Often materials available in US and don’t have to go to EU for data. I.e. journaling for e-mail and server in US even though e-mailing to Germany. Some data covered by EU privacy laws no matter where data is located.
- Not only data privacy laws but some countries like China have trade secrets restrictions. HIPPA, US financial data restrictions.
- Legal Hold- not used in UK. American system of preservation and collection- foreign to UK.
Hot Topics in E-Discovery- point – counterpoint discussion with Craig Ball and Ralph Losey. Moderated by Magistrate Judge Peck:
1) Pippins v. KPMG case:
- Ralph Losey – 3 things wrong with ruling 1) “dissed” proportionality in preservations 2) everybody in class action is key player 3) forensic imaging of computers when hours are at issue- not slack space, etc. why forensically image? Logged in and out, etc not relevant- all about e-mail tells when they were working. “All accounting will be done in China if we don’t stop this now!” Craig Ball- “You ignorant slut” Magistrate Judge Kott got it right. Despite what well heeled money like chamber of commerce says. Named players knowable – why not preserve? Collective not class action- affirmatively opt-in. More than just log-in contained in slack space. How can you destroy evidence before even certified. Losey –anyyone could bring down corporation with $150 lawsuit. What about KPMG footnote that they have to preserve some of the drives for other cases? Preserving for other cases or regulatory compliance- how did KPMG determine $1.5 million figure? Ball: If KPMG felt that strongly they should have just destroyed. Don’t ask judge for permission to destroy documents
2) Proposed Federal Rules Changes:
- Ball: proposed rules changes designed for yesterdays applications. Example- easy to recover deleted files. I.e. Tapes no longer inaccessible. Losey – discovery rules except for 2006 amendments were written for paper world (i.e. produce all information) Make it clear regarding relevancy, volume so great need to keep rules modern and keep justice affordable. Juries can only handle 5-10 documents. Need updated rules on preservation. Ball: rules designed to be flexible- well written. Embrace new tools and manage data just want to do what has always been done. Losey: change is dramatic- law and technology changing faster than at any time. Every corp. has terabytes of data- dramatic changes- rules need to change. Even e-mail going out. World has changed rules may need to change. Ball: merely repetition, productivity has not changed.
3) Proposals to stream line e-discovery
- Judge Radars model patent order: Losey: defends five custodians limits not 5 search key words. Ball- makes sense to begin with key players- but having key words in order is backwards step. Not moving towards quality- only recall not precision.
- Losey: cautious about self collection but does not rule out. I.e. Small cases. In general in big cases or certain types more concerned- fox guarding hen house.
- Sanctions: Ball- not many instance for good faith effort. Idea sanctions left and right being applied not true. Even Green v. Blitz sanctions not that severe. From almost nothing to twice nothing. More likely to be struck by lightning. Ball- needs more sanctions! Losey- sanctions doubling every year. Card played all of the time. Gotcha litigation- going on all the time.
Harnessing Search Technology Effectively
Charlie Kaupp – eDiscovery Consultant, Digital Strata, Inc.
Don McLaughlin – President and CEO, Falcon Discovery
- Using search terms not a “bad word.” TO develop effective key words discuss with those involved in case, for example IT staff if IT case, business people, etc. They know what terms, acronyms; will be most effective for searching.
- Use statistical sampling to test your key words and develop defensible process.
- Know you syntaxes. Different search engines use different syntaxes. Indexing is a choice. Know what was indexed in each matter. Beware of limitation’s
Discovering the Future: The year ahead for eDiscovery
Amir Milo – CEO, Equivio
Eddie Sheehy – CEO, Nuix
Andrew Sieja – President, KCura
Greg Wildisen – Managing Director, Epiq Systems
- Need to create atmosphere without fear of failure where innovation is encouraged
- Amount of worlds data will grow 50 times by 2020. Have to move away from “storage is cheap” philosophy. Storage servers getting full. Regulators see corporate data as an asset, lawyers as a liability.
- KCura Relativity statistics: now has 52,000 users and 13,000 matters. From 2010 to 2011 data increased on average from 645,000 documents per matter to 736,000 documents, a 14% increase. For 100 largest cases, average document counts increased from 2.2 million to 7.5 million documents, a 200% increase. In 2010, 2.5% of matters used analytics; by the end of 2011 it was up to 11% of matters used analytics.
- Look for increased use of Business Intelligence data in eDiscovery.
- Voice recognition market set to grow at annual rate of 8.8% through 2015. One hour of video uploaded to YouTube every second. Also look to use of software to search for photos.
- Cloud revenue expected to approach 148 billion dollars in 2014, up from 68 billion in 2009. By 2020, U.S>. organizations that move to cloud could save a total of 12.3 billion in energy costs – equivalent to 200 million barrels of oil.