Do Lawyers Not Get Technology, or Do Technologist Not Get Lawyers?

The short Answer:  A little of both.  Here's why the answer is complex...or is it?

The Great Transparency Debate

No question that lawyers need to keep up with technological advances that are rapidly changing the practice of law.  Comment on ABA Rule 1.1: Competence reads in part:

"To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. [emphasis added]"

It is true that some litigators don't understand technology at the level of the technologist. It seems like just yesterday that we had those CRT monitors on our desks and paper documents were everywhere.  But, should we expect litigators to gain a deep understanding of technology? Have the technologist in the process of peddling their goods over complicated things by trying to make their special sauce too special?  

What litigators do understand is this - the vast majority of all ESI preserved, collected, filtered, reviewed and produced will never see the light of day outside some hosted environment.  Most ESI will never even receive a bates number, much less get used at a deposition, in a court filing or in court during trial.  In fact, in most cases, less than 1% has any value at all.  

“I saw one analysis that concluded that .0074% of the documents produced actually made their way onto the trial exhibit list-less than one document in ten thousand. And for all the thousands of appeals I've evaluated, email appears more rarely as relevant evidence.” DCG Sys., Inc. v. Checkpoint Techs, LLC, 2011 WL 5244356 at *1 (N.D. Cal. Nov. 2, 2011) (quoting Chief Judge Rader) 

So, lawyers know that they are looking for but a handful of documents in a vast sea of mostly useless information. Throw in a bunch of technologist, many of which have never darkened the doors of a courtroom in a professional capacity.  Add a desire for complete transparency and "court approval" by the technologist, and some lawyers, and you have a great deal of confusion.  Much of the concern about transparency is misplaced.  

John Tredennick, of Catalyst Repository Systems, just this weekend published an article Using CAL to Solve the Transparency Problem in TAR, that correctly concludes (among other things) that it's not the technology that needs to be defended.  Although, John limited his conclusions to Continuous Active Learning (CAL) (a/k/a TAR 2.0) applications.  Lawyers and technologist are focused on the wrong part of the TAR story.  ESI Advantage here and in the past continues to submit that whether your using TAR 1.0 or 2.0, the technology should not be put on trial, so to speak.  Technology is simply a tool.

The Solution

ESI Advantage presented the solution to the misconception that court approval is needed for litigators to use technology back in February 2012 - "Technology Assisted Review ("TAR") - We have been expecting you!  What follows is the solution proposed then and still valid today.

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Some continue to think that courts are going to somehow sign off on “Predictive Coding”. 

Given the significant benefits that technology-assisted review can bring to e-discovery from the dual perspectives of quality and cost, expert commentators have asked a key question: Why isn't everyone using it? Of the 11 e-discovery vendors surveyed by Kershaw & Howie:

“[t]he most mentioned reason cited by respondents was uncertainty or fear about whether judges will accept predictive coding.” Kershaw & Howie,Crash or Soar (supra).

For the love of Pete, please stop thinking of this technology as something that the courts are going to “sign-off” on!! They will not.  Judge Peck said just that in the aforementioned Forbes article.   

What Technology-Assisted Electronic Discovery Teaches Us About The Role Of Humans In Technology.

“Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval. In my opinion, computer-assisted coding should be used in those cases where it will help “secure the just, speedy, and inexpensive” determination of cases in our e-discovery world.”

The courts have for years encouraged the parties to cooperate and come to agreement on the filtering methods.  This attitude of expected cooperation on the discovery process is nothing new.  It is not something that the technologist dreamed up.  When you read the rules of any state or federal court, you will find agreement and cooperation mentioned frequently.  While most “predictive coding” applications are built upon the same basic statistical algorithms and linguistic pattern detection, they don’t all always achieve the same result.  This is because that how you conduct the analysis – the workflow - is critical to the end result.  TAR is not the silver bullet alone.  Lawyers SHOULD NOT have to defend the technology – how the algorithms work, or what the technology does or does not do. Instead, we should focus on the workflow and the end result.  The technology being utilized should be transparent.  The workflow and end result should be based upon what a human decides is relevant.  For us at [ESI Advantage], there are really only two types of filters that need be explained [when transparency is desired].

Objective Filters:  Objective filters are essentially filters that can be applied without any “subjective” reasoning.  File type and date range are two common examples (not an exhaustive list) of filters applied in most cases. These filters should not be considered work product. Objective filters are often disclosed and agreed upon between the parties. 

 Subjective Filters:  Subjective judgment is applied to document decisions in most cases.  When a lawyer reviews a document, the “mental impressions” that lawyer makes is generally considered work product.  In the old days, we did not disclose how many “boxes” we reviewed to arrive at a production that may only be a few documents, or a few boxes out of hundreds.  We did not disclose what file cabinets were opened, or who was interviewed.  Then as is the case today, that production would occur in one of two forms (generally speaking).  Documents are either produced in their “usual course of business”, or “by request.”  In the “old days” we avoided producing “by request” as if it were the plague.

Search terms today are often used, [and will be continued to be used for some time to come...] A term is indeed an objective filter, but you may arrive at the use of a term using subjective factors.  You may even use “predictive” technology that, in its simplest form, looks for common words, concepts and patterns.  Either a document contains that word (or some variation) or it does not.  How you arrived at the term, however, may well be subjective and protected work product (some lawyer will make that call).  After all, attorneys are officers of the court and when responses are provided, the attorney for each party is representing that a diligent search has been conducted and that there has been compliance with the requests, or the appropriate objections have been lodged.

Conclusion

Nothing has changed since that February 2012 post, except that we would have expected lawyers to have adopted TAR methods in greater numbers than we've seen over the past several years.  In our humble opinion, the pure and simple reason is that technologist and litigators are not always on the same page about what is important.   As outlined above, we need to be focused less upon how the sausage is made (the math behind TAR) and more on how the sausage tastes. The parties should agree upon filters that they can exchange such as validated search terms, date and file type filters.  Whether your using a TAR 1.0, 2.0 or the yet to come 3.0 method is of little consequence to the courts.  The courts simply want everyone to get along.