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.

 

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