All posts tagged TAR

September 2017 Ediscovery Case Summaries

Court Orders an Aggressive Production Timeline, Citing Efficiencies of TAR
Rabin v. Pricewaterhousecoopers LLP, 2017 U.S. Dist. LEXIS 125404 (N.D. Cal. Aug. 08, 2017)

Court Puts the Brakes on Auto Manufacturer’s Proposed Discovery Protocol Involving an Onerously Restrictive Onsite Inspection
Pertile v. GM, 2017 U.S. Dist. LEXIS 141088 (D. Colo. Aug. 31, 2017)

Court Rules that Asking for Everything is Overly Broad and Unacceptable
Mirmina v. Genpact LLC, 2017 U.S. Dist. LEXIS 90422 (D. Conn. June 13, 2017)

Mere Speculation is Not Enough to Compel an Additional Search for ESI
Mirmina v. Genpact, 2017 WL 3189027 (D. Conn. July 27, 2017)

Privilege Waived as a Result of Reckless Production and Inadequate Clawback Agreement
Irth Sols. v. Windstream Commc’ns, 2017 WL 3276021 (S.D. Ohio Aug. 2, 2017)

That’s a Wrap! Reflecting on ILTACON 2017

Following the Path to Maturity amidst Innovation

A few weeks before more than 1,600 members descended upon ILTACON 2017 in Las Vegas, I had a chance to catch up with a couple distinguished peers in our industry to talk about their latest areas of focus. Always respected as “Blue Ocean” strategists, I was keen to hear their views on the latest and greatest challenges. The response was, perhaps, a surprising precursor to one of the major underlying themes amongst ediscovery and information management professionals at ILTACON this year: ensuring mature processes are in place.

The Newer Generation Unites with Seasoned Professionals

The primary focus of ILTA has always been peer-to-peer education. It was apparent at this year’s annual conference that, amongst a mature community, there is also a growing third generation of newer ediscovery professionals. Full EDRM lifecycle project management, processes and support; balanced outsourcing; use of multi-faceted Technology Assisted Review (TAR) strategies, predictive coding and Continuous Active Learning (CAL); and upstream, holistic information governance and effective legal hold were all familiar, prevalent themes at ILTACON 2017. The major difference is that this new generation of professionals are learning and adopting mature, data-driven principles, management skills, discovery processes and innovative technology derived from the path others have been blazing and curating over the last decade or two. So, foregone questions about “should we do this” or “how can we do this” have evolved into deeper discussions about “how do we do this best” and “which tools do I need to get the job done.”

From Predictive Coding to the Cloud…and Everything in Between

Corporations continue to build process, control and maturity around their approach to ediscovery as part of their broader efforts to help outside counsel efficiently respond to discovery under more astringent financial and information security constraints. Therefore, the community came to ILTACON 2017 seeking ideas and tools to maintain control of data, complement corporate movement to the cloud and build process efficiency into the EDRM lifecycle.

First, the debates over predictive coding have more or less waned. Instead, we found a deliberate focus on stronger implementation and significant rates of adoption, especially given enhanced methods such as CAL, which is fully built into KrolLDiscovery’s TAR solutions and complimented by our suite of technologies to accelerate document review. For instance, we learned during the ILTACON session I moderated, “Latest Trends in Leveraging Analytics in Litigation Support,” that 62 percent of the ediscovery professionals in attendance use predictive coding sometimes and 40 percent sometimes used CAL, too. Meanwhile, 27 percent have never used predictive coding. These statistics alone demonstrate great levels of acceptance and also reveal that the up-and-coming generation is ready to jump in!

Another significant ILTACON 2017 theme was the cloud. When it comes to corporations moving some data sources to the cloud, ILTACON attendees came seeking truly cloud-enabled and optimized ediscovery technology like KrolLDiscovery’s tool, NebulaTM. While one ILTA session poll revealed that 10 percent of corporate clients always use ediscovery analytics behind their firewall and an additional 29 percent do so sometimes, the majority do not. Therefore, when faced with the average ediscovery project, stakeholders continue to rely heavily on third-party expertise and technology.

Last, but certainly not least, was the topic of data security and control. There continues to be a trend toward centralized information management systems to better maintain and analyze corporate data and ensure effective legal holds through solutions like KrolLDiscovery’s Unified Archive. Yet, the majority of projects or initiatives continue to be motivated by reactions to the cyber attack and data loss epidemics, GDPR readiness and increases in litigation or investigations. Of course, the truly global ILTA community also came seeking secure, nimble and portable solutions that they could operate, such as KrolLDiscovery’s Remote Collection Manager (RCMgr®) to complete data preservation, collection and transfer anywhere in the world.

See You Next Year: ILTACON 2018

Whether the session labels touted “analytics,” “cloud,” “ediscovery,” “information governance,” “artificial intelligence,” “business intelligence” or “Blockchain,” the entire ILTA community, across peer groups, came together with one overarching theme in 2017: how do we more efficiently leverage better technology to compile, process, distill, analyze and transform information into actionable results. At ILTACON 2017, it was my privilege to tackle these challenges with legal technology colleagues from around the country and around the world. I am definitely looking forward to doing it again, August 19 – 23, 2018 in Washington, DC.

Document Review: MythBusters Edition

A couple years ago, I wrote a blog entitled, “Bust These 4 Myths on Your Next Document Review.” In this blog, I looked at four common document review myths and the realities behind the fallacies. Fast forward two years, there is no better time to revisit these myths to take the pulse of document review in 2017, considering the evolution of ediscovery technology, processes, rules and case law.

Myth #1: Document review just happens; you don’t really need a plan.

Since the adoption of the FRCP amendments we have seen courts admonish parties for:

  • Discovering new documents not in the original collection
  • Missing documents that should have been produced the first time around
  • Amassing costs for inefficient discovery methods

With document review technology at the top of its game, the misconception that document review is trivial is fading. In meeting with corporations and law firms, I hear legal teams appreciating the importance of having a review methodology. More often than not, those teams are inquiring as to how their processes can be improved.

2017 Document Review Lesson #1: Don’t procrastinate or wander aimlessly when it comes to review. Know your path from collection through production and be able to justify your methods.

Myth #2: Any attorney can conduct (or manage) a document review.

Today, document review is not the unglamorous chore of former times. With advancements in the review tools, increasingly senior attorneys are finding themselves immersed in document review more than in years past. The tools are easier to operate than ever before, and senior attorneys – typically subject matter experts on the case – are in the best position to review the most pertinent documents, especially if predictive coding is used.

At the same time, in order to fully leverage analytics and predictive coding features, the attorney will need advanced training or someone skilled in using these powerful features to guide them through. With formable technology at their fingertips and millions of documents to wrangle, today’s document reviewers are not only licensed and highly qualified attorneys; but also may have specific training and certifications in various document review platforms. Many have expertise in a different language other than English, or substantive knowledge in their practice area.

2017 Document Review Lesson #2: The days of brute force attorney review are over. Today’s document review requires subject matter experts in the case, working side-by-side with technology-minded attorneys that know how to maximize time and minimize costs.

Myth #3: All document review technology is equal.

What appears equal at face value, is not equal in action. While most major review tools function generally in a similar manner, there are enhancements unique to a particular provider and its tool set. From running searches and batching documents to using predictive coding or reviewing audio files, experienced document reviewers will recognize the fine distinctions of each provider’s platform, knowing when and how those features can be helpful. If they cannot answer a question, the reviewer should know how to get a hold of the technology provider’s technical support team to lend a hand.

2017 Document Review Lesson #3: Get into the technology weeds. Understanding the nuances of a provider’s technology is the only way to reap the benefits of a modern document review.

Myth #4: It will be obvious when you can stop review…when you run out of documents.

Predictive coding has changed how legal teams approach document review; however, even in 2017, the adoption of this is technology is marginal at best. Outmoded teams are still conducting linear reviews of every document, while progressive teams have figured out how to embrace predictive coding so that only the most vital documents are being reviewed for production. But, this does require a team that knows how to sample and interpret the metrics and reports generated by the technology.

2017 Document Review Lesson #4: The terminology related to predictive coding can cause one’s head to spin. Dust off your math skills (or leverage a specialist) – it’s the only way a savvy document review professional knows when a review is finished.

Leverage KrolLDiscovery for Document Review

Looking to modernize your document review methods?

KrolLDiscovery offers advanced document review services around the world, with fully managed review teams and up-to-date facilities in eight locations in four countries: Washington D.C., Chicago, Pittsburgh, Miami, Minnesota, London, Poland and Germany. KrolLDiscovery’s managed document review services teams provide you with specialized document review attorneys to meet your case needs. KrolLDiscovery review platforms are integrated with top-of-the line technology-assisted review and predictive coding features to search, categorize, redact and annotate documents. Our review teams utilize this technology to maximize efficiency through intelligent document prioritization and categorization, automated workflow, advanced search functionality and multilingual support.

Spring Digest: Everything You Need to Know (so far!) in 2017

Ediscovery has been busy this year. We’re only five months in and we’ve already seen developments in predictive coding, proportionality standards and ediscovery practices around the world.

Before you head off on your summer vacation, take a minute to refresh yourself on some of the hottest topics in ediscovery so far this year.

Proportionality is Key

One of the most significant amendments to the Federal Rules of Civil Procedure back in 2015 was a new requirement for discovery to be “proportional to the needs of the case.” Today, counsel must ensure that their discovery requests are specific and add value to their case in relation to the accompanying expense.

Australia Gets in the Predictive Coding Game

First the United States, then Ireland and England, and now Australia. Predictive coding (also known as TAR) continues to spread around the world as courts encourage parties to consider technology to discover and inspect documents.

Using Cellebrite in Mobile Phone Investigations

You need not be a computer wizard to appreciate the volumes of relevant data housed on the mobile device in your hand. The standards and technology for extracting mobile device data are still progressing, variable and slightly confusing. KrolLDiscovery’s Jason Bergerson answers common questions around specific technology and processes in mobile phone investigations.

Ediscovery Around the World

Throughout this year, KrolLDiscovery will be diving deep into ediscovery practices around the world. We hope you’ll join us as we explore data collection, privacy, proportionality and production practices in the Americas, EMEA and APAC. So far, we’ve stopped in Australia, Ireland, Canada, the U.K. and Germany to discuss some ediscovery trends in each locale.

Be sure to sign up for updates from The Ediscovery Blog to stay on top of everything ediscovery.

The Luck of the Irish…and Predictive Coding

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 [2015] 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 U.K. would celebrate its first judicial opinion referencing predictive coding when the English High Court issued Pyrrho Investments Ltd. v. MWB Property Ltd. [2016] 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.

Looking Back, Peering Forward: The Top Ediscovery Cases of 2016

The 2015 FRCP amendments are now one year old and there are a full twelve months of case law to guide practitioners through the contours of the new rules. The last year in case law has seen stark developments on how courts interpret the proportionality, levy sanctions, utilize new technologies and reconsider costs to make ediscovery “just, speedy and inexpensive.”

Our webinar, The Top Ediscovery Cases of 2016, updates practitioners on the ediscovery highlights of the past year and features three ediscovery experts, offering the perspective of both counsel and judges:

  • Patrick Oot, Shook, Hardy & Bacon
  • Magistrate Judge Hildy Bowbeer, District of Minnesota
  • Magistrate Judge David J. Waxse, District of Kansas

Rule 26(b)(1): Proportionality Today

The webinar first discusses that the most drastic change of Rule 26(b)(1) is the essential change of mindset. The case Gilead Scis. v. Merck is used as an example to illustrate the place of proportionality in ediscovery. Gilead reveals the required sound reasoning both a party requesting discovery and a party objecting to discovery need to employ. In other words, “now the scope of discovery is neither broad nor liberal…it is proportional.” Attorneys that ignore proportionality do so at their own risk: the case Fulton v. Livingston Fin. is also used to show how the court imposed sanctions on a litigant who made arguments based on the old rule.

Rule 37(e): Sanctions Illustrated

The webinar then discusses the scope of Rule 37(e) and addresses the need to utilize “reasonable steps” to prevent sanctions, as this rule was formed with the intent of curtailing excessive ESI storage. The webinar uses the case Marten Transp. v. Plattform Adver. to show that the scope of a preservation duty is focused: courts expect “reasonable steps,” not perfection. The case Living Color is also used to highlight the fact that parties cannot simply make conclusory statements about prejudice resulting from ESI spoliation without any evidence and expect the court to levy sanctions.

One reason for excessive ediscovery costs is a cultural one and the webinar highlights that Rule 37(e) fits with Rule 1, which was amended for this reason. Cooperation between litigants is a key component of successful preservation, and a panelist observed, “Lawyers too often ignore their obligation to cooperate.”

Predictive Coding: New Frontiers

There are two myths underlying document review discussed in the webinar. The first is the myth that a response to discovery needs to be perfect when in fact the rules call only for “reasonable inquiry.” The second myth is that human review is the best way to ensure responsive documents are not missed when manual review has been shown to be imperfect. In this webinar, the discussion of these two myths sets the stage for asserting that predictive coding technology can be utilized to make ediscovery a more efficient practice.

2017: The Year of Ediscovery

In 2017, one common wish is that attorneys become better educated in ediscovery and the new technologies available. Courts will continue to dissect what constitutes reasonable steps for ESI preservation and also provide additional guidance for when discovery is proportional. Even though counsel may not be proficient in proportionality, the webinar concludes by stating that judges “recognize proportionality when they see it.”

With new opinions continuing to emerge, we expect the ediscovery landscape in 2017 to continue to evolve. Watch this webinar, The Top Ediscovery Cases of 2016, to learn more about the impact of the 2015 FRCP amendments and predictions for the upcoming year.

DOJ Antitrust Division Issues New Model Second Request, with New Predictive Coding Instructions

On November 28, 2016, the Department of Justice (DOJ) Antitrust Division issued an updated Model Second Request, aimed at revising and streamlining the model to conform to “current division practice.” The updated Model will be used for all Second Requests issued on or after December 12, 2016. The new model contains significant changes to merging parties’ obligations during a Second Request, as well as a substantial formatting overhaul.

Regarding the use of ediscovery technology during a Second Request from the DOJ, the predictive coding instructions were meaningfully modified.

First, the new model appears to signal an increased acceptance of use of predictive coding during a second request. Specifically, the searching and predictive coding instruction begins with the following new language, “Before using software or technology…” seemingly indicating that the Antitrust Division recognizes that it is not a matter of “if” parties are leveraging technology but “when” and “how” that technology will be used.

Second, the new model requires merging parties and their counsel to be more astute than ever before when it comes to ediscovery technology. For example, if search terms are used, merging parties must now submit a list of stop words and operators for the platform being used. Also, if predictive coding technology is used to identify or eliminate documents, merging parties must provide more than just a description of the methods being used. Under this new model, the Antitrust Division also is requiring information about the use of subject matter experts to review seed sets and training documents, effectiveness metrics (such as recall, precision and confidence-intervals) and validation protocols, including sampling protocols used to categorize non-responsive documents.

The new predictive coding and searching instruction is provided in full below:

November 2016 Version – DOJ Model Second Request

  1. Before using software or technology (including search terms, predictive coding, de-duplication, or similar technologies) to identify or eliminate documents, data, or information potentially responsive to this Request, the Company must submit a written description of the method(s) used to conduct any part of its search. In addition, for any process that relies on search terms to identify or eliminate documents, the Company must submit: (a) a list of proposed terms; (b) a tally of all the terms that appear in the collection and the frequency of each term; (c) a list of stop words and operators for the platform being used; and (d) a glossary of industry and company terminology. For any process that instead relies on predictive coding to identify or eliminate documents, you must include (a) confirmation that subject-matter experts will be reviewing the seed set and training rounds; (b) recall, precision, and confidence-level statistics (or an equivalent); and (c) a validation process that allows for Department review of statistically-significant samples of documents categorized as non-responsive documents by the algorithm.

As these new instructions reinforce, Second Requests are synonymous with sheer complexity. At Kroll Ontrack, we have leading technology backed by human experts who know how to successfully navigate a Second Request. Kroll Ontrack is uniquely equipped to help manage your document productions to the FTC, DOJ and other global competition bureaus.

TAR: Building a Better Playlist

TAR

“Sometimes it seems as if our Pandora and Netflix accounts know us better than we know ourselves, and can build a better play list…”

Brett M. Anders

Brett M. Anders, Jackson Lewis

In a recent article in Today’s General Counsel, Brett M. Anders of Jackson Lewis and my Kroll Ontrack colleague Rick Anderson, seek to debunk the misconception that human lawyers alone can build a better playlist when it comes to legal document review.

Human Review Is Not the Gold Standard

Practitioners shy away from predictive coding and technology assisted review (TAR) in part because of the myth that human review is superior to that done by a computer. However, this is not the case. Humans can be inaccurate: relevant documents can be missed and accuracy suffers. This position has been verified by studies and is generally accepted by the judiciary. The use of TAR has received much support from the courts in the cases where it has been an issue. However, at this point, no court has gone so far as to mandate the use of TAR.

Rick Anderson, Kroll Ontrack

Rick Anderson, KrolLDiscovery

Using Technology Assisted Review in Litigation

As of now, several judicial opinions have surfaced regarding the use of TAR. As noted above, the courts have supported it as a cost effective method for conducting discovery. The standard for discovery responses is “reasonable and proportional to the matter,” not perfection. Therefore, the accuracy offered by the use of TAR satisfies the standard for discovery production.

Speaking of proportionality, using TAR can place a party in a better position to make an argument about proportionality when litigation costs become too high. Because TAR prioritizes which documents are most likely to be relevant, a party who makes its way through the documents with the highest relevance has a basis to argue that additional discovery would not be “proportional to the needs of the case.”

Advantages of Using TAR

As discussed by Anders and Anderson, despite the apprehension to utilize this technology in the legal community, the fact remains that TAR has many advantages.

  • TAR costs a fraction of the expense it would take to review documents manually
  • TAR is typically faster than traditional document review, while also more accurate
  • Courts have approved the use of TAR; parties no longer need to worry about being the first to use this technology in a case
  • Courts are encouraging its use, while respecting the party’s wish to keep its seed set (used to train predictive coding technology) confidential

For more information on TAR, and how to utilize its benefits in litigation, be sure to read the full article, “Building a Better Play List with Technology-Assisted Review.”

Soft Data, Warm Data, Little Thread of Emails: The Big Bang Theory Meets ILTACon

The hit CBS show, The Big Bang Theory, returns this month and fans are eagerly awaiting developments with each character’s storyline – from relationships between Leonard, Penny, Sheldon and Amy to the impending arrival of baby Wolowitz (which may interfere with the gang’s annual Comic-Con plans).

One thing that cannot be interfered with is the legal tech industry’s own Comic-Con – better known as ILTACon. At ILTACon, the Big Bang Theory clan would be right at home, diving headfirst into technologies that improve law firm and corporate law/IT department responsibilities. Frankly, this tradeshow is known for being a total geek-fest. (And the lawyers, litigation support professionals and IT staff in attendance are cool with that.)

Bazinga! Just Another One of Kroll Ontrack’s Inventions

At ILTACon this year, Kroll Ontrack was excited to announce its newest gizmo to aid document review: Communication Insight.

To understand the benefits of Communication Insight, a Relativity-based application, it is worth elaborating on what viewing retrieved emails is like without it. Normally, when an email is reviewed, it is very difficult to piece together conversations and themes. Going through each file is time-consuming (read: expensive) and presents the risk that important information will be missed because the email is not viewed as part of a whole conversation. The bottom line – document review needs to be intuitive.

Kroll Ontrack Presents: Fun with Emails

At its core, Communication Insight makes it easier to view threads of emails and understand what happened in the entirety of the conversation. With this technology, the user is able to tell when the subject of an email changed, who was part of the conversation and if attachments were dropped. It provides a comprehensive overview of the conversation, so that complicated email chains can be read in context. Emails are displayed in a manner familiar to email users and the program notifies users if someone was added to or left the conversation. Through a logical display of conversation data and dynamic visual cues, reviewers can quickly make decisions and intuitively focus their review.

For Relativity users, Communication Insight is a new feature Kroll Ontrack is proud to bring to the platform. #ILTACon2016 attendees seeing Communication Insight in action noted that it gives them everything they need, front and center…and even a non-geek can appreciate that.

New Resources Available for Interpreting the FRCP

Ediscovery resources

The first couple of months after the Federal Rules of Civil Procedure (FRCP) amendments were enacted in December 2015 changed the ediscovery atmosphere. During that time, it was unknown to practitioners whether the changes to Rules 26(b)(1) and 37(e) would create any reaction by the courts, much less if they would substantially influence the course of discovery. The early opinions became a sounding board as both courts and parties struggled with the challenges of interpreting the new amendments and the impact they would have on their cases.

In just a few short months, the 2015 amendments will be one year old and many courts now have established expectations based on the new rules.  Practitioners can no longer afford to ignore the changes. In order to help practitioners avoid making their case a lightning rod, Kroll Ontrack has compiled a number of useful resources published this summer to help you navigate the current framework.

Summer 2016: New Ediscovery Resources

  • Published in mid-August 2016, Gibson, Dunn & Crutcher’s report, 2016 Mid-Year E-Discovery Update, highlights the current trends of courts in regards to 26(b)(1) and 37(e).
  • Kroll Ontrack’s e-Book, 6 Months of Case Law Under the New FRCP, which is mentioned in the Gibson, Dunn & Crutcher report, gives a six month overview of cases which have had the most impact due to the new amendments.
  • Nationally renowned ediscovery expert, Tom Allman, has released a new treatise entitled, Applying the 2015 Civil Rules Amendments. The article provides useful background information on the formation of the new amendments, as well as an analysis of how the rules are being utilized by the courts.
  • The recent Sedona Conference publication, TAR Case Law Primer, offers a comprehensive overview of the jurisprudence surrounding the use of TAR. The primer also includes a discussion of the use of TAR in an international context.

Don’t miss out on these great new resources!

 
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