WARNING !! IF YOU ARE CONTENT WITH RELYING ON MASSIVE REVIEW EFFORTS TO RACK UP BILLABLE HOURS TO PROP UP YOUR BOTTOM LINE, STOP READING NOW.
IF YOU ARE CONTENT WITH RELYING ON MASSIVE REVIEW EFFORTS IN A MISGUIDED ATTEMPT TO GAIN CONTROL OVER YOUR DOCUMENT PRODUCTIONS, STOP READING NOW.
IF YOU ARE CONTENT WITH RELYING ON MASSIVE REVIEW EFFORTS THAT DEPEND ON SPECULATION AND LUCK TO FIND INFORMATION IN YOUR ESI COLLECTION, STOP READING NOW.
We’ve probably already offended some of you. We’re don’t mean to hurt anybody’s feelings. Our intent is certainly not to offend, but rather to have a bold, honest conversation about the possibilities that exist for truly effective Information Governance and E-Discovery.
So, if you are interested in reading some hard truths, take a deep breath and plunge right in. We’ll make this brief. Well, we’re not exactly known for brevity, so we’ll focus on making it thought-provoking instead.
Hard truth #1: We don’t need another tool.
If the legal profession is longing for some disruptive technology that will answer all their eDiscovery prayers (and comments coming out of Legal Tech certainly seem to indicate that they are) then let us say that what the legal profession needs isn’t wishful thinking about a tool or a platform, or some other yet-to-be-invented TAR review system. It needs a fundamental shift in thinking, a completely different approach to finding case-winning information in ESI. Or relevant information in ESI. Or potentially privileged information in ESI. Or any kind of evidence in ESI. The problem isn’t that the right technology hasn’t been invented yet. The problem is that the right teams of experts aren’t being assembled to navigate eDiscovery workflow processes yet.
Hard truth #2: Effective eDiscovery and Information Governance is, at its core, a problem of control.
Companies, inside counsel, and outside counsel all need to control ESI *before* it goes out the door. 1) You have to meet your legal obligation regarding relevancy; and, 2) You don’t want to produce any privileged or confidential information. To meet these 2 essential responsibilities you need control. Control means visibility into your information. Visibility means devising reasonable, defensible, data-driven means of identifying the scope of your ESI and the content of your ESI. That right there? That entails investigation. Simply put, you can’t control what you don’t know.
This control issue is a problem for the party receiving a production as well. What is devising an eDiscovery workflow process other than a massive effort in controlling for quantity versus quality? The whole notion of document review is one rooted in discipline and control. Otherwise, why would the legal professionals driving this process disregard research that confirms inter-variation and intra-variation between individuals engaged in tasks and task switching endeavors involving executive control (such as multi-classification/coding criteria document review tasks), which ultimately renders tasks like reviewing and coding inconsistent at best, and at worse, unreliable. There’s also great research regarding task complexity (such as multi-classification/coding criteria document review tasks) that concludes when you give an individual several classification/evaluation variables to consider all at once, they will simplify the decision-making process by eliminating information, thereby constraining choice. In other words, inherent inconsistency and unreliability.
So, a lawyer’s eyes on every document? A team of attorneys using several criteria in which to code and classify each and every document in a collection? This incarnation of the “doctrine of control” isn’t reasonable in today’s Big Data/ Big ESI environment. A lawyer’s eyes on the *right* set of documents? The most valuable set of documents that resulted from a targeted investigation into a particular topic or individual? Now that makes sense.
Hard truth #3: Investigation not review
Instead of throwing money and temps and a dime-a-dozen review platforms at eDiscovery, consider this: You shouldn’t be reviewing ESI. You’re not studying for a test. You shouldn’t be classifying documents. You’re not readying your collection to be archived in the Library of Congress. Decide what you need. That is the question: What do you need from your ESI? Figure that out and then go in and get it. That, my friends, is investigation, not review. And this sort of large-scale forensic investigation endeavor is fast, efficient, and because of those two things, much, much more cost effective. It’s also defensible, both scientifically and legally. A win-win.
Hard truth #4: You need linguistic/language experts.
We know you’re sick of hearing it, but that doesn’t mean it isn’t true. You need people on your team who understand things like orderly variation, relative frequency and distribution, language innovation and change, how context shapes meaning, how words are known by the company they keep, and a host of other linguistic principles that interact and govern how we concretely express ideas. Linguistic principles govern things like how we ask and give advice–the foundation of potentially privileged communications. Going with the idea of privilege, consider this: There are both linguistic and extra-linguistic components to a privilege “recipe.” You need to find all the potentially privileged documents in your ESI? Then task the right expert, the one who understands and utilizes patterns of linguistic behavior, who knows how to control for extra-linguistic variables, the person who can go in and grab all the potentially privilege documents. It really is that simple. The right expertise trumps the *right* tool. The right expertise trumps sheer human-muscle. Every. Time. Somebody with the right expertise and training, and a copy of DT search (a great off-the-shelf search tool), can prevail against an entire review team of randomly assembled temp attorneys with the swankiest TAR platform. We’re serious, people.
Let’s put it this way: Why wouldn’t you have a language expert/linguist on your eDiscovery team? Why wouldn’t you consult the group of experts who specialize in natural language production? Who better to consult with respect to ESI, which, let’s face it, is largely linguistic in nature.
So, are the reasons that there are a million document review platforms and sky-rocketing eDiscovery costs because nobody has figured this out? We don’t need another tool. We need to recognize the value of linguistic/language expertise. We need to incorporate expert training with respect to concrete language usage instead of thinking up search terms. Searching is an investigative skill, not simply a matter of typing a bunch of words into a field. Likewise, predictive coding hinges on identifying and plugging in the right “seed set” to train the modeling algorithm. How are you finding that seed set of “responsive documents?” Or who is finding them, we should ask. Is it somebody with knowledge of language variation and context-based meaning? We surely hope so, because we can tell you definitely that for every one document in your seed set, there are dozens upon dozens out there in the universe of ESI that impart the exact same information in a completely different way, linguistically speaking. And if you don’t include all of them in your seed set? Then there’s a significant amount of relevant material that is going to be left behind. Period. The algorithm can’t predict and account for the range of language variation. It can’t “learn” what it doesn’t “know” outside of the seed set. That is not how predictive modeling works. It’s not magic, after all.
We’ll end this intentionally provocative conversation by circling back to how it began: What the legal profession needs is to recognize is that the landscape is changing. Document review is the fossil fuel of the legal world. Document investigation is the wind farm on the horizon.
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