On this St. Patrick’s Day, it’s opportune to revisit a prominent Irish judicial opinion – in fact, the first known judicial opinion in Europe to endorse predictive coding.
In the spring of 2015, Ireland embraced predictive coding in Irish Bank Resolution Corporation Ltd v. Quinn  IEHC 175, a case holding that, in the discovery of large data sets, technology assisted review (TAR) using predictive coding is at least as accurate as, and probably more accurate than, the manual or linear method of identifying relevant documents.
The judgment is a great read for predictive coding pundits and a shining endorsement of the potential benefits of this technology. Specifically, the court held that:
- The rules of court in Ireland do not require a manual document review to be carried out;
- The evidence establishes that in discovery of large data sets, TAR using predictive coding is at least as accurate as, and probably more accurate than, the manual or linear method in identifying relevant documents;
- As TAR combines man and machine, the process must contain appropriate checks and balances which render each stage capable of independent verification. The parties need to agree to these;
- Provided the process has sufficient transparency, TAR using predictive coding discharges a party’s discovery obligations;
- Predictive coding will save time and money if used to refine a data set and to limit the pool of documents to be manually reviewed. It was projected that 10% of the 680,809 documents would need to be manually reviewed after employing predictive coding, as compared to the traditional linear review estimate that required a team of 10 experienced reviewers, a nine month time frame and a cost of two million Euros; and
- Parties should first agree to the use of predictive coding, run agreed upon keyword searches to initially refine the data set and then use predictive coding subject to agreed-upon checks and balances. Documents suggested by the software as being potentially relevant should then be reviewed manually by a human review team.
The ruling addressed major concerns expressed about predictive coding and sought to sway the skeptics. It unequivocally stated that predictive coding will save time and money. Although there is no specific reference to proportionality in Irish law, the judgment stated that cost should not be a barrier on access to justice.
The Irish opinion relied significantly on Judge Peck’s Da Silva Moore opinion, setting the predictive coding tone in the United States in 2012. A year after Ireland’s Quinn opinion, the UK would celebrate its first judicial opinion referencing predictive coding when the English High Court issued Pyrrho Investments Ltd. v. MWB Property Ltd.  EWHC 256 (Ch). In that case, Master Matthews estimated that predictive coding would offer significant cost savings and that the possible disclosure of over two million documents done via traditional manual review would be disproportionate and “unreasonable.” Late in 2016, Australia joined the list of countries tackling predictive coding issues when Justice Vickery from the Supreme Court of the State of Victoria issued a key opinion in McConnell Dowell Constructors v. Santam.
As we continue through 2017, what country will be next to focus on predictive coding? Don’t miss any development; subscribe to KrolLDiscovery’s weekly email updates.
In early February, KrolLDiscovery sponsored a Legaltech educational session focused on mobile devices and extracting the data contained therein. You need not be a computer wizard to appreciate the volumes of relevant data housed on the mobile device in your hand; however, extracting that data does take a spark of genius. The standards and technology for extracting mobile device data are still progressing, variable and slightly confusing.
The Legaltech panel assembled to discuss this very topic included the following mobile device wizards:
- Michael Burg, corporate counsel for DISH Network,
- Clifford Nichols, senior counsel for Day Pitney,
- Rich Robinson, ediscovery and information manager for JCPenney, and
- Jason Bergerson, director of consulting operations for KrolLDiscovery.
The panel focused on four key topics:
- How mobile phones and applications differ across device types
- How to get access to mobile device data (or try to prevent collection from mobile devices in the first place)
- How to collect and extract data once you have access
- How to develop findings from the reporting and information you attain
A Law.com journalist in the audience memorialized some of the panelists’ remarks and advice. Take time to read the article “Mobile Data Extraction 101: How to Deal With Complex Mobile Data Structuring” to increase your own mobile forensics magic skills.
In 2017, KrolLDiscovery will be diving deep into ediscovery practices around the world. Tour with us as we explore data collection, privacy, proportionality and production practices in the Americas, EMEA and APAC.
A couple weeks ago, we travelled to the Land Down Under to learn about predictive coding practices in Australia. Our next stop: Canada, where we find that Canada is leading the way on cooperative ediscovery.
What role does ediscovery technology play in Canadian litigation matters?
Ediscovery practices in Canada closely align to analogous processes, principles and goals in the United States and the United Kingdom. For example, Canadian parties and their counsel are seeking to collect, process, review and produce electronic documents as quickly and efficiently as possible. To achieve that goal, many law firms have implemented in-house ediscovery technologies to be able to support their clients’ litigation needs. Some firms and corporations, on the other hand, also take advantage of the close-knit ediscovery community in Canada and choose to work with an ediscovery provider in a managed services capacity. Akin to the United States, many law firms are continuously re-evaluating current technologies and looking for new solutions as the cloud opens new avenues for conducting ediscovery faster and possibly cheaper without sacrificing security.
What is unique about ediscovery in Canada?
In Canada there is not a large body of ediscovery case law like in the United States or even the United Kingdom. In fact, a prominent judicial opinion referencing predictive coding or Technology Assisted Review has yet to be handed down. Instead, legal teams rely on practices and guidelines such as those found in The Sedona Canada Principles or Ontario Rules of Civil Procedure 29.1.03. Furthermore, the Ontario Ediscovery Implementation Committee (EIC) released a series of model documents to help guide litigants through the ediscovery process, including a Discovery Agreement, Preservation Agreement, Checklist for Preparing a Discovery Plan and a Proportionality Chart.
Specifically, when talking with Canadian ediscovery gurus, there is a general sense that Canada leads the global ediscovery community in terms of cooperation and proportionality, with many practitioners stating that developing ediscovery parameters with opposing counsel or regulators is simply more collaborative when compared to ediscovery matters in other jurisdictions.
What are some obstacles to ediscovery in Canada?
In some aspects of legal technology, the Canadian legal system is still playing catch-up, especially when it comes to the technically complex areas of ediscovery, trial presentation or technology in the courtroom. For example, there are factions of early-adopters embracing predictive coding in document review. However, despite the well-established benefits, the majority of legal teams are reluctant to leverage artificial intelligence to categorize documents.
Over the next few years, document review workflows will modernize as additional Canadian legal teams become more experienced with new technology such as predictive coding. This will be increasingly important in the antitrust practice area, where regulators are starting to adopt broader policies similar to U.S. antitrust protocols. The need for predictive coding will increase if parties in antitrust matters need to sift through additional volumes of documents.
How often do Canadian legal teams transfer data to the United States or Europe for ediscovery?
Canadian legal teams are continuously evaluating the needs of the specific matter and comparing risks and benefits of conducting ediscovery in Canada versus elsewhere. Many corporations in Canada have U.S. offices; so often, Canadian litigation has a U.S. based component and ediscovery documents easily cross borders. However, sometimes legal teams are reluctant to transfer data to the United States for ediscovery processing, hosting and review because of the potential impact on other pending cases or the importance of privacy in the matter. Legal teams in Canada understand that ediscovery is available in the global marketplace and should the availability of technology, ability to deliver under tight time frames or need for a large pool of document reviewers demand resources outside of Canada, parties will consider transferring subsets of data to the United States or Europe.
How does language impact ediscovery in Canada?
Many cases contain documents in both English and French; accordingly, legal teams often require document review teams comprised of bilingual Canadian lawyers fluent in English and French. This sometimes drives up the costs associated with review, placing more importance on advanced search and analytics technologies that increase document review speeds and effectiveness.
Looking to stay up to speed on global ediscovery practices? Don’t miss this whitepaper, “A Practical Guide to Cross-Border Ediscovery.”
Last week I had the opportunity to speak at the February meeting of the Minnesota Association of Litigation Support Professionals chapter. About 50 people gathered for lunch and learning, sharing in a retrospective of ediscovery case law in 2016. This was a chance for me to “go deep” into the facts and holdings of some of the foremost judicial opinions in the past year and, for me personally, the experience was enjoyable. In full disclosure, I have been asked to speak at MALSP on this topic in years past; however, the assignment never grows monotonous. Each year there are always interesting and meaningful developments to discuss, with no shortage of captivating facts.
In addition to examining Bard, Gilead Sciences, CAT3 and Hyles, we talked about how the decisions of 2016 will shape ediscovery law and practices in 2017. There was great consensus that in 2016, courts and parties were finding their footing applying the 2015 FRCP amendments to ediscovery. In 2017, it is anticipated that courts will be off and running, digging into thornier issues as parties make stronger arguments for and against proportionality under Rule 26(b)(1) and sanctions under Rule 37(e). At the end of 2016, I published an article focused on both of these topics and more. As you prepare for ediscovery in 2017, be sure to take five minutes and read “How This Year’s Experience With the New Rules Will Shape Next Year’s Ediscovery.”
Court Narrows the Scope of Social Media Discovery
Scott v. United States Postal Serv., 2016 U.S. Dist. LEXIS 178702 (M.D. La. Dec. 27, 2016)
Court Imposes Sanctions for Failure to Preserve Phone Call Recordings
Sec. Alarm Fin. Enters., L.P. v. Alarm Protection Tech., LLC, No. 3:13-cv-00102-SLG, 2016 WL 7115911 (D. Alaska Dec. 6, 2016)
Court Delivers a Package of Proportionality and Cooperation in Class Action
Solo v. UPS Co., 2017 U.S. Dist. LEXIS 3275 (E.D. Mich. Jan. 10, 2017)
Court Schools Parties on Duty to Preserve and Finds No Act of Spoliation
Archer v. York City Sch. Dist., 2016 U.S. Dist. LEXIS 178969 (M.D. Pa. Dec. 28, 2016)
“Mere Speculation” of Spoliation is Not Enough to Issue Sanctions Under Rule 37(e)
HCC Ins. Holdings, Inc. v. Flowers, 2017 U.S. Dist. LEXIS 12120 (N.D. Ga. Jan. 30, 2017)
As we have said before, predictive coding (also known as Technology Assisted Review or TAR) is taking the globe by storm. First the United States, then Ireland and England, and now Australia. Ediscovery practitioners take heed: significant predictive coding developments are afoot in Australia.
(Special Note: If you are looking to stay informed on ediscovery around the world, don’t miss this whitepaper, “A Practical Guide to Cross-Border Ediscovery.”)
Predictive Coding: From New York City to the Australian Outback
Late last year, Australia joined the list of countries tackling predictive coding issues when Justice Vickery from the Supreme Court of the State of Victoria issued a key opinion in McConnell Dowell Constructors v. Santam.
In this case, the parties faced massive costs to review 1,400,000 documents, and they could not agree on a review method. Justice Vickery appointed a Special Referee to deliver a report to the court addressing the appropriate management of discovery in the proceeding. Relying on previous TAR decisions from the U.S. and Europe, as well as the Special Referee’s recommendation to use TAR, the court approved predictive coding as an effective method of document review when “the cost of traditional discovery processes in a case such as this dictates that [such processes] are not appropriate.”
Notably, the McConnell opinion made it clear that the courts, not the parties, would have the final determination in whether predictive coding will be employed in civil proceedings in Victoria state court. Specifically, Justice Vickery held that “the Court may order discovery by technology assisted review, whether or not it is consented to by the parties” in cases where the volume of ESI is substantial and “the costs of research may not be reasonable and proportionate.”
However, McConnell was not Victorian litigators’ first exposure to TAR in the courtroom. Three months before the McConnell decision, the Supreme Court of Victoria released a Standard Operating Procedure (TEC SOP 5 [TAR]) to provide litigants with interim measures for using TAR in construction and engineering cases. On January 30, 2017, the court replaced TEC SOP 5 with Technology in Civil Litigation Practice Note SC Gen 5, opening up TAR for general use in Victoria’s commercial courts.
Consent or No Consent: That is the Predictive Coding Question
While predictive coding is gaining traction as an effective tool to tackle massive document sets, there is no bright line on whether a party can be required to use TAR. Contrary to the holding in McConnell, U.S. courts have not compelled parties to leverage TAR. In 2016, two key opinions, Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. Aug. 1, 2016), and In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., 2016 BL 347130 (N.D. Cal. Oct. 14, 2016), acknowledged the efficiencies associated with predictive coding, but refused to force a party to leverage the cutting-edge technology. That being said, U.S. attorneys need to be prepared that the days of insisting on manual review may one day soon be bygone. As noted by Judge Peck in Hyles, “[t]here may come a time when . . . it might be unreasonable for a party to refuse to use TAR . . . [but][w]e are not there yet.”
What’s Next for the Land Down Under?
Victoria is not the only state in Australia getting in on the ediscovery action. Courts in New South Wales abide by their state Supreme Court’s 2008 Practice Note No. SC Gen & for Use of Technology encouraging parties to consider technology to discover and inspect documents. While this practice note and other similar guidance in the Australian federal court system do not specifically reference TAR, savvy Australian practitioners know that this will likely change in the near future.
Looking to stay up to speed on global ediscovery practices? Don’t miss this whitepaper, “A Practical Guide to Cross-Border Ediscovery.”
Today marks the last day of #LTNY17! Congrats to everyone on another successful Legaltech New York. For those of you that did not get a chance to attend, here’s a recap of two key developments from our industry’s busiest conference.
Legaltech 2017, Now Known as Legalweek (the Experience)
Building on the popularity of its annual Legaltech New York conference, this year, ALM launched a new event, “Legalweek, The Experience,” in an effort to broaden its reach past the technology sector. Legalweek was designed to focus on seven key areas of legal business: Legaltech, LegalExecutive, LegalCIO, LegalPros, LegalMarketing, LegalSmallFirm and LegalWomensForum.
Habitual LTNY attendees were happy to report that the stalwart event remained largely unchanged as part of the greater Legalweek experience, with many attendees appreciating the additional keynotes occurring throughout the week. The LegalWomensForum and LegalCIO breakouts seemed to gain the most traction in Legalweek’s inaugural year, with plenty of room to grow the experience in years to come.
Two Great Companies, One New Name: KrolLDiscovery
Legaltech was not the only entity to reveal a new name this week. In December 2016, Kroll Ontrack was acquired by LDiscovery, and LTNY17 was the perfect opportunity to unveil the combined companies’ new name brand. Now, two renowned ediscovery companies are coming together to form one global leader: KrolLDiscovery.
KrolLDiscovery will use the combined resources of both companies to provide our clients with the best ediscovery services on the market with the same reliability they have come to expect. Having served clients for over 30 years, the combined organization will have offices in 19 countries with approximately 1,300 employees worldwide.
Legaltech was a buzz over the new KrolLDiscovery brand and, not surprisingly, many Legaltech attendees turned to social media to express their excitement. If you are looking to stay up to speed on all things KrolLDiscovery, make sure you follow us on our new LinkedIn page.
For those of us in the legal technology realm, next week is the most anticipated week of the year: Legaltech New York (LTNY). While it has a new name, “Legal Week, the Experience,” it will likely be the same, familiar LTNY with its informative sessions, reunion-like networking and enjoyable celebrations.
Just as in past years, Kroll Ontrack (an LDiscovery company) will be at LTNY en masse. We are excited to once again send a contingent of people to brush up on their CLEs and RCEs (Relativity Continuing Education credits), pass out trinkets at our popular booth and conduct enlightening sessions. As you are building your itinerary for the show, make sure to include the three sessions in Kroll Ontrack’s “Ediscovery Everywhere” educational track.
- Cathleen Peterson will be presenting the session 3 Situations, 2 Lawyers, 1 Corporation: Using Relativity in a Data Breach, an Investigation and Litigation. Brian Hengesbaugh from Baker Mackenzie will join Cathleen in presenting this session. Learn how Relativity works in a real world situation and how a fictitious corporation uses new document review work streams to assist with three different types of hypothetical legal matters—a data breach response, an investigation and litigation.
- Jason Bergerson will be moderating the session Mobile Device Investigations: From Android to iPhone and Back. Check out this session to learn from a mobile forensics expert, a law firm attorney and in-house legal teams about how mobile data might be helpful during litigation and how it differs from other ESI. Joining Jason on this panel will be: Rich Robinson, Ediscovery & Information Manager at JCPenney, Michael J. Burg, Corporate Counsel at DISH Network, and Clifford E. Nichols, Senior Counsel at Day Pitney.
- Tom Barce will be moderating the session Information Governance – Hindsight is 20/20: A Moderated Debate. Attend this panel featuring speakers Patrick J. Burke, Seyfarth Shaw, Ben Hubble, Wendy’s, and Jessica Escalera, Barclays, to watch the information governance showdown as the panelists debate the merits of taking a reactive approach versus applying a proactive model in a global ediscovery matter.
Learn more about everything LDiscovery and Kroll Ontrack have planned for the show by visiting our Legaltech events page. Also, before you head out next week, make sure you stay connected with your mobile device: Search for “Legaltech” in your app-store and download the free app!