Last week, I enjoyed the privilege of speaking on a panel with distinguished colleagues at the ING3NIOUS 2017 NorCal Information Governance Retreat in Carmel Valley, Calif. Our panel was appointed to discuss TAR and what we, as an industry, have learned about using it in legal matters. This session was one among a series of insightful discussions about the needs, direction, impact and practicality of technology in information governance, data security and electronic discovery. Overall, this retreat inspired, challenged and informed everyone in attendance. The scale and setting is more intimate than some other events, which resulted in a healthy exchange of ideas and challenges from experts and innovators in technology and law. Amongst the many great stories and lessons learned, I walked away from the retreat with three major observations.

#1 There’s more work to do with Technology Assisted Review.

As mentioned in my prior blog post, predictive coding and Technology Assisted Review are commonly accepted at this point. Nevertheless, stakeholders continue to evaluate, and have a healthy debate about, the conflicts and merits of related topics such as the appropriate level of disclosure and incorporation of traditional keyword search. Meanwhile, most of the technology itself has had only one major revolution in its 10 years of use. Namely, the ascent from Simple Active Learning (i.e., the first generation of predictive coding) to Continuous Active Learning. Of course, I am honored to be part of a respected and select field of leaders and innovators in predictive coding solutions to deliver these types of enhancements and much more. After synthesizing the discussion from a few of the panels at the NorCal Retreat, it is apparent that while the sufficiency of productions resulting from predictive coding endeavors remain largely unchallenged, there are a number of opportunities for on-going development and enhancement of predictive analytics, which will require a critical focus on both operability and underlying technology to maintain defensibility and enable counsel to focus on the most important content.

#2 Business processes conflict with situational nuances.

Corporate data has tremendous value to be protected and yet to be derived. In fact, there might even be an opportunity cost to not measuring and assigning an intrinsic value to the data itself. For example, consider valuation of data protected from or subject to a breach. Imagine the insurability of data itself under a commonly accepted valuation model. Meanwhile, a practical path to this idea seems as elusive as substantial application of retention policies to electronically stored information. In fact, trends and sentiments continue to suggest that information retrieval and classification are superseding data destruction priorities as search and analytics technology becomes more precise and computing capacity continues to expand. Many reasonably contend that there is risk in letting old data pile up and rightfully cite the fact that 85 percent of corporate data could be redundant, obsolete or trivial. Others contend volume should not dictate value because losing one good item amongst 20 records matters to some. All of these points demonstrate the natural and on-going tension between the demands of disputes and investigations amidst corporate governance in the information age. While information governance professionals, corporate electronic discovery managers, in-house legal operations and technology companies increasingly strive to manage legal matters and electronic discovery in a manner similar to other business processes, outside counsel cautiously, and almost unilaterally, operate around the variables and nuances of different cases and situations, strongly advocating for approaches that are tuned to the situation.

#3 We all hope and need to unify and streamline.

Despite the complications mentioned above, everyone’s strong conviction is that a more effective and consistent set of solutions can be realized. The give-and-take between customized solutions, new technology, preferred providers and pre-defined solutions means there is still a lot of opportunity along with the challenges. Each organization is aiming to adopt and provide unified processes and innovative technology with practical capabilities across the spectrum of information management, data security, case administration, project management and electronic discovery. For every firm or corporation that selects a solution, there are still others with strong preferences and compelling features and value propositions. There is a lot of room, and perhaps even an acute need, to coalesce around a more concise, stable and sustainable portfolio of technology-enabled solutions. This need will continue to ignite outstanding conferences and working groups like Ing3nious (and Sedona, ILTA, EDI, ERDM, ACEDS, IGI, WiE, etc.), where legal and technology professionals can propel the conversations and initiatives associated with these opportunities in our industry.