Since the advent of Technology Assisted Review (aka TAR, predictive coding or computer-assisted review), one of the open questions is whether you have to run a separate TAR process for each item in a document request. As litigation professionals know, it is rare to have only one numbered request in a Rule 34 pleading. Rather, you can expect to see scores of requests (typically as many as the local rules allow). Continue reading
I have been on the road quite a bit lately, attending and speaking at several e-discovery events. Most recently I was at the midyear meeting of the Sedona Conference Working Group 1 in Dallas, and before that I was a speaker at both the University of Florida’s 3rd Annual Electronic Discovery Conference and the 4th Annual ASU-Arkfeld E-Discovery and Digital Evidence Conference.
In my travels and elsewhere, I continue to see a marked increase in talk about the new TAR 2.0 protocol, Continuous Active Learning (CAL). I have been seeing increasing interest in CAL ever since the July 2014 release of the Grossman/Cormack study, “Evaluation of Machine-Learning Protocols for Technology-Assisted Review in Electronic Discovery.” Continue reading
Catalyst founder and CEO John Tredennick is a featured guest on the latest episode of Karl Schieneman’s ESI Bytes podcast, where he talks about the challenges of introducing innovative technologies to the legal community. Also on this episode are Magistrate Judge John M. Facciola of the U.S. District Court for the District of Columbia and Jay Lieb, a founder of NexLP.
In this episode, both Schieneman and Judge Facciola serve as the interviewers, asking questions of Tredennick and Lieb, with Judge Facciola also sharing his own insights. Schieneman explained his intent in choosing the topic of innovating technology:
Every year the most popular CLE program in the country is LegalTech so one would think the desire to learn new technology is rampant among lawyers. Experience in the field would tend to suggest otherwise. We thought it would be interesting to have two entrepreneur technologists on the show to talk about their perspectives on gaining adoption of new technologies in the legal space.
You can listen to or download the podcast here.
Technology assisted review has a transparency problem. Notwithstanding TAR’s proven savings in both time and review costs, many attorneys hesitate to use it because courts require “transparency” in the TAR process.
Specifically, when courts approve requests to use TAR, they often set the condition that counsel disclose the TAR process they used and which documents they used for training. In some cases, the courts have gone so far as to allow opposing counsel to kibitz during the training process itself. Continue reading
It is has been three years since U.S. Magistrate Judge Andrew J. Peck issued the first court decision approving the use of technology assisted review in e-discovery, Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182 (S.D.N.Y. 2012) (Peck, M.J.), affd, 2012 WL 1446534 (S.D.N.Y. Apr. 26, 2012). “This Opinion appears to be the first in which a Court has approved of the use of computer-assisted review,” he wrote then.
Now, in an opinion released yesterday, Judge Peck says that, in the years since Da Silva Moore, “the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” Continue reading
Many attorneys still consider e-discovery to be a niche area of law practice, one they would prefer to stay well away from. But do lawyers have an ethical responsibility to be knowledgeable about e-discovery and competent in its practice? In California, the answer could soon be, “Yes.”
A proposed ethics opinion of the State Bar of California (Proposed Formal Opinion Interim No. 11-0004) would require attorneys who represent clients in litigation either to be competent in e-discovery or associate with others who are competent. The bar is accepting public comments on the proposed opinion until April 9, 2015. Continue reading
The fourth annual ASU-Arkfeld eDiscovery and Digital Evidence Conference takes place March 11-13 in Tempe, Ariz., and we are happy to be able to offer this blog’s readers a 30 percent discount on registration.
This annual conference — produced by noted e-discovery attorney and educator Michael Arkfeld and the Sandra Day O’Connor College of Law at Arizona State University — features three full days of programs presented by some of the leading judges, practitioners and educators. Continue reading
What is the impact of data and technology on the modern law firm and lawyer? This was the question Forbes contributor David J. Parnell set out to answer when he recently interviewed John Tredennick, Catalyst’s founder and CEO, and Mark Noel, Catalyst’s managing director of professional services.
At one point in the wide-ranging interview — which was published on Forbes last week – Parnell asks Tredennick about some of the major changes in legal technology he has witnessed over the years. In response, Tredennick says that the legal industry is currently in the midst of a major transition with respect to technology assisted review.
Suddenly technology has come where you take a million documents in review—and for any big firm lawyer that’s a big smile on their face because with junior associates reviewing at 500 docs a day, you’ve got your year made—and somebody comes along and says, “You know, with a wave of a wand and a couple training docs, we’re going to cut that million documents down to about 50,000 docs that are probably important.” Maybe 95% of those billable hours go away. That does not make the lawyers smile. That does not make you smile.
But I’ve seen this for 30 years. The innovation comes out; the billable hour suffers; but you always have a few law firms that are not at the top, and then they say, “We don’t have 50,000 associates. Let’s go outsmart them. We’ll lead the way.” And they start taking business away from the big guys. And the corporate entities listen and change happens.
Elsewhere in the interview, Noel tells Parnell that technologies such as TAR are helping to ease the work of lawyers, but will never replace them.
Many people are realizing that they have to change the way they work. And tools like technology assisted review are changing the way attorneys work. But it’s not going to replace them. TAR tools can quickly analyze millions of documents for subtle patterns, but only humans can decide what’s important to the case, or what stories the documents can tell. So these systems are hybrids: The machines do what they do best, and the humans do what they do best. There will be plenty of work to go around for skilled practitioners who know the tools and have the right skillsets.
Read the full interview at Forbes.
Our Summit partner, DSi, has a large financial institution client that had allegedly been defrauded by a borrower. The details aren’t important to this discussion, but assume the borrower employed a variety of creative accounting techniques to make its financial position look better than it really was. And, as is often the case, the problems were missed by the accounting and other financial professionals conducting due diligence. Indeed, there were strong factual suggestions that one or more of the professionals were in on the scam.
As the fraud came to light, litigation followed. Perhaps in retaliation or simply to mount a counter offense, the defendant borrower hit the bank with lengthy document requests. After collection and best efforts culling, our client was still left with over 2.1 million documents which might be responsive. Neither time deadlines nor budget allowed for manual review of that volume of documents. Keyword search offered some help but the problem remained. What to do with 2.1 million potentially responsive documents? Continue reading
In her column today for the popular legal blog Above the Law, technology writer Nicole Black says that one of the best items of swag at this year’s LegalTech New York was the new book from Catalyst, TAR for Smart People: How Technology Assisted Review Works and Why It Matters for Legal Professionals.
At LegalTech, Catalyst handed out the book in hard copies. But for those of you who did not make it to LegalTech (or who just don’t want to kill any more trees), the e-book edition is now also available. To get your own copy, download it here free. It is available in both PDF and Epub versions.
The book was written by Catalyst founder and CEO John Tredennick, with contributions by Dr. Jeremy Pickens,, one of the world’s leading information retrieval scientists and senior applied research scientist at Catalyst; Mark Noel, a lawyer who is managing director of professional services at Catalyst; and me, a lawyer and technology writer and director of communications at Catalyst. It features a forward by internationally known e-discovery lawyer Ralph Losey.
Starting from the premise that TAR is a sophisticated process that draws on science, technology and law, the book explains the basics of TAR while also exploring advanced issues and applications. The book serves as a practitioners’ guide to TAR, with a focus on the newest TAR protocol, Continuous Active Learning (CAL).