Lessons Learned at the University of Florida Law/EDRM Conference

Post by guest blogger Tiffany Fox


I had the opportunity to attend the inaugural E-Discovery for the Small and Medium Case conference at the Levin College of Law at the University of Florida (UF) in the beginning of April. This was an effort by UF to educate attorneys who may not have had exposure to the world of ESI, typically because their cases don’t involve the large corporations who have been doing e-discovery for years. The purpose of the conference was to identify and explain best techniques in approaching e-discovery in smaller cases (for example, divorce or employment matters), but the net effect was a solid overview of the world of e-discovery.

The in-person moderators for each panel, who also co-chaired the conference, were William Hamilton and George Socha. Hamilton is the director of UF’s e-discovery project, which educates attorneys (through classes at the law school and this conference) and engages in research and development of e-discovery software. Socha is the president of Socha Consulting, but is better known for his role in co-founding the EDRM. Adding to this pedigree, the panels included representatives from a wide range of e-discovery roles, including state judges, attorneys both from law firms and in-house positions, litigation support and e-discovery directors, and representatives from some of the leading service providers.

The day and a half event walked through the basics of the EDRM by presenting a sort of “e-discovery 101.” There were opportunities for participants, both in person and online, to comment and ask questions to flesh out areas of interest or confusion. The first EDRM session was about identification, collection, preservation and processing; and the last was about review and production. This provided a complete journey through the EDRM model.

I was particularly engaged by the initial session, in which the panel covered the issue of e-discovery competency. Most lawyers are quickly realizing that they cannot ignore ESI, whatever the issues in a given suit, and that more and more cases, regardless of size, require some level of e-discovery. However, only a small percentage of attorneys feel they have sufficient knowledge to handle their clients’ issues competently. With the exponential growth of electronic data, this will create a crisis in the courts and a significant increase in the risk of malpractice if we as an industry don’t educate ourselves sufficiently. Conferences such as this one are crucial for already-practicing attorneys.

In addition, law schools must realize that to properly equip students, a thorough understanding of the basics of e-discovery is absolutely necessary. Many schools are already offering some level of introduction to e-discovery, and hopefully that trend will continue to catch on. As more clients become savvy regarding their own use of electronic data, even something as “simple” as social media, they will expect their attorneys to be able to speak about the legal implications of the use of such data.

From a logistics perspective, this was a unique conference: the in-person fee was minimal for 11.5 hours of CLE credit, and people were given a half-price option to participate for the same CLE credit via a webcast. The webcast was almost as interactive as the in-person experience, as the web participants were able to send questions via email, and a designated moderator (retired Judge Ralph Artigliere of the Florida Circuit Court) asked the questions in person, alongside questions from people in the room. The webcast provided a great way for people who were unable to travel to get a better educational experience than we typically see from traditional CLE webcasts.

We also received access to a huge online library of resources compiled by the conference panelists and moderators:

-          Articles about software and processing or review techniques

-          Summaries of the latest e-discovery case law

-          Budgeting tools and legal hold planning checklists

It was an incredibly thorough way to provide attorneys at all levels of e-discovery experience with the tools to educate themselves, and then implement processes to protect their clients when they encounter a case that will require some level of discovery of ESI.

I hope the University of Florida Levin College of Law will offer this conference again. I gained knowledge in areas of e-discovery I haven’t had the opportunity to work in, which I found invaluable to my own career as an e-discovery attorney.

Anyone interested in expanding his or her knowledge of the larger world of e-discovery should consider attending this conference next year, either in person or via the web.

 

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.