My, What a Difference a Year Makes

Disclaimer (A bit tongue and cheek, but I do think this is necessary as there are some critiques below):  The views and opinions expressed herein are solely those of the author and should not be attributed to Counsel On Call, Inc., or any of its officers, attorneys or employees.


I’ve had the good fortune to attend the past two annual conferences for the Association of Certified E-Discovery Specialists (ACEDS) in Hollywood, Fla., held at the superb Westin Diplomat.  In comparing the two conferences, all I can say is, “What a difference a year makes.”

First, and purely incidentally, the weather in 2012 was sunny, warm and generally quite pleasant. This year, the weather was overcast, rainy and a bit cooler. 

Just as the weather cooled a bit I think I detected a slight “cooling” of the conference attendees’ collective enchantment with the so called predictive coding technology.  In 2012, predictive coding was going to cause an industry and professional upheaval, eliminating the need for discovery (contract) attorneys, cutting costs, improving accuracy and possibly shifting influence between different stakeholders in this area.  One year later, we have experience  – more reported court decisions directly on point and more vendor entries into the marketplace.  With this collective experience, the conference attendees had a cooler, more nuanced view of the technology.

Please don’t misunderstand, there’s no question that predictive coding (also known somewhat synonymously as technology-assisted review or simply “TAR”) is here to stay and should only improve with time.  Rather, the bloom has worn off, and practitioners are discovering that, although at times and for certain types of matters, TAR improves efficiency, overall quality of a review and can significantly lower overall costs. Nevertheless, it is neither a cure-all nor the disruptive technology that some claimed last year.

I think there are several reasons for this maturing of the collective view:

  • The term predictive coding (trademark issues aside) seems to mean different things to different people, hence the use of the more generic TAR designation. This causes confusion among potential customers.
  • Some technology vendors may have rebranded older technology as TAR, perhaps thereby lessening the user experience.
  • Different TAR tools have different “blind spots” that limit their utility, e.g., image files and spreadsheets may not be considered by the analytics.
  • Far from removing human judgment from the process, TAR applications may increase dependence on human judgment.  For example, mistakes by “subject matter experts” can be amplified.  Alternately, I suggest trying your hand at picking “exemplar” documents to teach the computer – a document might be technically non-responsive to the litigation but would nevertheless have excellent teaching parameters.
  • TAR itself is not inexpensive.
  • TAR reduces data but does not eliminate the need for some linear review, either with quality control or during the construction of a privilege log.
  • Not all matters are suitable for TAR, ether due to the size of the case or the type of data.

Counsel On Call has always been a solid proponent of predictive coding as well as an early adopter.  Vendors now, however, call their technology predictive coding without the functionality.  There is no question that predictive coding is here to stay; rather, its potential is still less than hyped.

I’m looking forward to attending next year’s ACEDS Conference.  While not perfect (panels are too large and too much time is spent on speaker introductions), it’s the only conference of which I’m aware that is focused on the e-discovery practitioner.  ACEDS also seeks to professionalize this field, and this is a good thing.

Maybe next year the weather will be warmer.  It will be interesting to take the attendees’ temperature on TAR as well.

 

Video Interview: Discussing the role of social media in litigation with LXBN TV

Follow Barry on Twitter (@barrywillms)

Following up on the post I wrote about social media in 21st century litigation, I had the opportunity to speak with Colin O'Keefe of LXBN on the matter. In the interview I discussed how social media evidence is becoming more prevalent in corporate litigation and offered my thoughts on how companies can prepare for it. 

An Aerial View of the Association of Certified E-Discovery Specialists

Follow Barry on Twitter (@barrywillms)


The third annual Association of Certified E-Discovery Specialists (ACEDS) Conference was held again this year at the Westin Diplomat in Hollywood, Fla. We had great lodgings for sure, but they did not order the warm weather in so-called sunny Florida. Next year’s conference will be moved to May in order to compensate for this unruly weather. I guess I can’t complain too much; there are colder places in February/March, especially this year.

The gathering seemed to be a bit smaller than last year, but it was a really good group of professionals. There were several good sessions in addition to lots of opportunities to mingle and meet everyone. The information presented focused on a number of areas but a lot of them could be labeled within technology assisted review (TAR), social media and various ‘best practices’ within the industry.

It seems everyone is starting to dabble in TAR by various names (computer-assisted, technology-assisted, predictive coding, etc.). Much of the discussion went beyond simply being comfortable with the subject matter but included discussions on how to properly validate the process, workflow and output to make sure to achieve your goals and benchmarks.

The use of social media in litigation has not become as big as it was originally projected to be in 2013. However, its presence in cases continues to grow. Tweets, Facebook pages and many other networks are more routinely being collected and produced in litigation than ever before. We can only imagine that this will increase over time. We were told, for example, that instant messaging is the norm for business communications in some Asian countries instead of email. It’s certainly something we’ve been anticipating for a couple of years here in the states and that our technology partners are well prepared for.

The ‘best practices’ within the industry sessions included the following: dealing with data privacy issues of the EU, preventing malpractice or having ethical issues overtake you, and following a process to meet your budget, review and production objectives. There it is again: Success always comes from having a process and following it. As we always tell clients, it’s the project manager’s responsibility to ensure there is a process that is documented, defensible and ultimately repeatable in a future matter. Here are a few quick hits on the good, the ‘OK’ and the bad of the conference:

The good: It was a gathering of practitioners of e-discovery, folks who actually do this day in and day out. Lawyers, consultants, paralegals, IT professionals and technology vendors provided a good mix. It was refreshing to hear war stories from those who deal in process and who want to perfect the best practices of a growing industry. While the conference overdid the ‘experts’ language a bit, it really was a good group of professionals who work exclusively in this industry that had a lot to share on how best to accomplish goals. In the end, process always wins out. It’s best for clients, budgets, meeting deadlines and your own sanity.

The ‘OK’: While the topics were timely, the presentations this year seemed a bit elementary. There were too many presenters on each panel and not enough variety of speakers from one panel to the next (seemingly lots of folks did multiple panels). Variety is good for the soul. I would encourage the ACEDS team to expand the speaker selection and let each panel have a bit more time to develop its topics and provide more time for Q&A.

The bad: My constant pet peeve: too much time on introductions. For example, the first session didn’t start on time and resulted in the panelists not being able to talk until we were more than 35 minutes into the program. This limited the Q&A time which is often a very helpful part of the conversation. Then again, I’ve been to conferences where this would have been a good thing!

The moral of the story is that it wasn’t perfect. But what conference ever is? I appreciate ACEDS’ attempt at bringing together the best of breed within e-discovery people who are well versed in this field. My philosophy is the more we focus on best practices, the more clients will rely on us to help achieve their goals. All in all, it was a good event filled with useful information and solid connections with other e-discovery specialists.