While there’s a well-known prohibition against disclosing content from the sessions (for reasonable concerns about “outing” any particular person who’s views may not coincide with their organization’s perspective), I think it’s fair to discuss a few general themes from the conference. Not surprisingly, predictive coding and the accompanying workflows, defensibility and transparency were hot topics. Similarly, the proposed amendments to the FRCP lit the fuse to a spirited dialogue (folks at Sedona don’t “debate”).

Nearest and dearest to my heart, though, was the session on information governance, where I had the privilege of sharing the dais with several other members of the drafting team to discuss our draft of guiding principles for a proposed information governance paper. During the relatively brief presentation, the audience generally confirmed many of the challenges associated with this emerging new discipline, namely obtaining consensus on the following:

• Who “owns” information governance?
• Where does it reside organizationally?
• Are there information governance best practices yet?
• Is there a universal, information governance definition?
• How do you build the business case for information governance?
• How do advanced technologies, like predictive coding, enable information governance?

The first logical step has to be gaining consensus on a definition. The one I’m proffering is a hybrid of the many permutations that exist out there (from Gartner, ARMA, AIIM, etc.). The key is that the definition must focus on the need to optimize information value while minimizing the associated risks:

“Information Governance is a cross-departmental framework consisting of the policies, procedures and technologies designed to optimize the value of information while simultaneously managing the risks and controlling the associated costs, which requires the coordination of eDiscovery, records management and privacy/security disciplines.”

Fortunately, the eDiscovery movement from the last decade has paved the way for this type of cross functional, multi-department initiative. I remember wistfully the days when it seemed like there was literally a session at every conference explaining how to get Legal and IT to speak the same language.  While there will always be language barriers that exist between functional groups, there now seem to be more in common than different.

As a relatively new discipline, information governance amplifies the need for a common language and extends the necessary constituents, going beyond the initial Legal-IT grouping to add in Risk, Compliance, Infosec, Records Management, as well as stakeholders from relevant business units. While these groups might have had periodic participation in an episodic eDiscovery event, the information governance movement requires a dedicated seat at the table.

Earlier this year, Judge Peck announced at LegalTech that “If 2012 was the year of predictive coding or technology-assisted review, 2013 or ’14 seems to be information governance.” The next step is for groups like Sedona to continue advancing the discussion by defining what’s within the information governance purview, who’s involved and what guiding principles are at play. Until there’s better clarity about these basic building blocks it will be hard for this initiative to get beyond the early adopter stage and go truly mainstream.  If/when that happens, information governance promises to truly ring in a new era in the defensible management of data within organizations.

The post Information Governance Still Hinges on Basic, Definitional Issues appeared first on Recommind.

Rule 33: The (Beginning of the) End of Interrogatories?

Of all the instruments of discovery that seem to be overused in respect to the value gained from usage, interrogatories have to top the list for me.  I often joked with lawyers that I had little interest in hearing the testimony of opposing counsel, so why not save both of us the time and trouble and just take a deposition.  That practice reduced discovery disputes related to form objections and hollow explanations that were offered to obfuscate the truth.  That is not necessarily a reflection on the lawyers I practiced against – it is a reflection that the interrogatory simply has limited value.  It seems its greatest value is in its charm and antiquity.  Other than that, I wish we could amend the Rules to limit the usage even further.  Disclosure requirements could eliminate many of the common interrogatory requests; collaborative behavior and short depositions would take care of the rest.  Time will tell, but I have to think the interrogatory is living on borrowed time.

Rule 30: Shorter depositions?  Why didn’t we think of that?

Limiting the number of depositions is a good idea; limiting the time is even better.  Look, it’s not that 7 hours (excluding the time for breaks as those attorneys who really like to watch the clock will remind you) is a long time; it’s really more of a matter that very few depositions in the majority of cases out there actually warrant such a lengthy timeframe (remember, not every case is a $10,000,000 case).  I have seen and heard of too many instances where the deposing party essential plays four corners offense just to make the deposition take as long as it can take.  An effective technique if your goal is to use all the time (and run up costs!); not so much if you (and your client) would like to get to the point and move on with their day.  In fairness, some of the blame lies with some of the training institutes out there that encourage a deposition style that does not lend itself to an efficient approach to the deposition.  For those of you who have sat through such course, you know what I am talking about.

And keep in mind, I am not suggesting that being thorough is a bad thing – far from it.  I just think that limiting the time (absent showing of good cause of course) promotes a more efficient approach to the deposition.  Take the time to prepare, know what you need to get out of the deposition, and do that.  If you finish early, use that time for some other worthwhile endeavor.  It will be interesting to see how often lawyers will move for additional time if the 6 hour limitation is adopted.  My sense is no more often than they do now to get more than 7 hours.

Rule 36: Fewer requests for admissions

Rule 36 Requests for Admissions were always one of my favorite discovery tools.  What other tool in discovery has a built in timing mechanism that actually matters?  Few things match the anticipation that builds on day 29 when Requests for Admissions are outstanding.  Like a no-hitter in baseball, you tried not to discuss it because you knew that would cause opposing counsel to respond.  And in those rare instances where someone was late, you eagerly drafted the motion with the hope that this would now turn the table in the litigation.  Rarely, did the actual event live up to the expectation.  You almost always received them in an email around 4:45 on day 30, and even if you did not receive them, the Court was rarely willing to buy the argument that such blatant disregard of the Rules was manifested by the Responses being delivered on day 32.

Nonetheless, like all discovery mechanisms we need a limit on the number that can be propounded.  I recall once receiving more than 200 requests for admissions, which essentially rehashed much of the answer and complaint material and the rest rehashed deposition testimony.  Out of all of those requests, the Court thought 5 or so were actually relevant to the legal issues and were not already admitted and known by the parties. Fortunately, our client was spared the expense of answering such wasteful discovery requests.  The fact they didn’t cap the number in regards to requests to authenticate evidence should alleviate any reasonable concerns lawyers might have regarding the change.

Rule 34: What is your objection, counselor?

The ultimate goal of the new rule will be, primarily, to reduce the burden imposed by certain objections to requests for production.  Finally, Rule 34 will require that objections be stated with specificity as is already required under Rule 33 (and I would argue was already prohibited by the Rule 28(g) certification).  The other change when it comes to objections is a new requirement that if you are withholding responsive information you must state that when making the objection.  I really think both of these changes are long overdue.  The practice of objecting (and generally a long boilerplate objection to boot) and not disclosing whether you actually have material responsive to the request is maddening.  I can think of many occasions where we received such an objection, fought about it for weeks only to learn at the hearing that for many of the requests they simply do not have it!  I suppose there is an argument that you must object to the request even if you don’t have responsive information, but I do not think it is a compelling argument.

So, what do you think?  Are these new Rules going to change the game where you practice or are they just another new development you will have to explain to opposing counsel when they blatantly violate them?  Share your thoughts with me on Twitter @wmdrewlewis, or sound off using the hashtag #NewFRCP.

The post Will the Rule Changes Be a Discovery Game Changer? appeared first on Recommind.

The restructuring of the National Health Service (NHS) for England (Wales, Scotland and Northern Ireland are unaffected) became effective the 1st of April (some consider the date rather apt).  We encountered a mixture of confusion – many delegates were in new roles and new organizations; cynicism – Kenneth Olisa described revolution as either a major change or a 360 degree turn; and excitement –  about new opportunities.  Since times of disruption are often the best times to implement new solutions, many were particularly interested in Recommind’s CORE platform, which was unique among the products being exhibited being the only platform capable of analyzing large volumes of unstructured data.

The conference was very productive for us.  We had countless conversations, attended sessions, and honed our skills with Recommind’s highly popular light up yo-yos.  Mostly though, we listened and learned.  Our own Nick Patience was asked about these and other challenges in an interview, where he noted that some of the challenges the NHS faces are similar to others we have come across in terms of the volumes of unstructured data lying around.

I wrote recently of some of the challenges common to the US and British health systems.  Many of these, in particular care coordination (US)/care integration (UK), quality measurement, chronic care management, and pay for value were recurrent themes throughout the event.  All can benefit enormously from insights to be gleaned from the unstructured portion of the health record – the clinical notes, imaging impressions, referral letters, discharge summaries, patient comments, and social media posts that contribute to the heterogeneity of healthcare information.  We did find there was far more free text, both on paper and online, within the British system than in the US, so we are excited about assisting providers in more effectively accessing patient records for care, responding to subject access requests, that is, the individual’s right to review a copy of his/her health record, and transforming care with the assistance of clinical analytics.

During some free time prior to the conference, I attended the final day of an exhibit at the Museum of London entitled “Doctors, Dissection and Resurrection Men.” I was particularly struck by a 19th century London hospital admission register with its careful listing of patients, occupations, residences and conditions.  I’m looking forward to reviewing the data mining scholars have done on that particular set of unstructured data.  For the time being though, my reaction was, “Wow, HIT has come a long a way!”

The post Transatlantic healthcare: two countries, two systems, but similar challenges appeared first on Recommind.

Today organisations are faced with an increasing volume, variety and velocity of information. Over the last decade, they have been hoarding this information, which is now spread across the business and stored or archived in numerous data repositories. However, due to the complexity of unstructured information, it isn’t stored in any uniform way and categorised correctly. This can potentially leave data in a state of chaos, exposing the business to legal and compliance risks, as well as making it difficult to extract any meaningful insight from this information.

But who is the Database Administrator for unstructured information? Patience will attempt to answer this question, along with addressing the challenges of managing unstructured data and how value can be derived from it. If you have a question for our resident Big Data expert, get involved and join the conversation at 1pm 25th April. Please tweet @Recommind with your questions, including the hashtag #RCMDJam. If you want to get your question in early, feel free to tweet throughout the week and we will make sure we get the answered!

Don’t be square, make sure you’re there! The answers are at the tips of your fingertips, just hit send.

When: 1pm, 25th April

Where: On Twitter – @Recommind

Who: Nick Patience, Recommind’s Big Data Expert – @nickpatience

What: Who is the Database Administrator for Unstructured Information?

How: Tweet your questions to @Recommind and include the hashtag #RCMDJam, it is open to anyone to participate

The post Who is the Database Administrator for Unstructured Data – Recommind Tweet Jam appeared first on Recommind.

I was reminded of that incident at the World Health Congress in DC last week.   I participated on a panel, “Harnessing the Power of Data Analytics for Improved Clinical and Financial Outcomes.”   We had an audience question about the return on investment from analytics.  One of the panelists, Pamela Peele, described the effort her organization, UPMC Health Plan, had put in “making data fit for consumption.” That is, the mapping, scrubbing, and selection process they had gone through to ensure disparate data sources aligned properly.  She said they spent three years on this effort before they began to see a return on their investment, but that having done so, they saw ever increasing value.  And they have clearly done their work well.

Very few organizations have the intestinal fortitude to stick it out through that much foundational effort prior to seeing a real return.  Like my father, they would rather slap on some “analytics paint” usually a pretty dashboard over a predefined data cube, than do the hard work of preparing the “data surface” well.  But I’m not convinced that everyone needs to either.

During that same session, moderator Chris Seper, of Medcity Media, asked panelists where they felt the healthcare industry lies on an analytics maturity spectrum that runs from simply counting what is done to truly optimizing behaviors.    My response was that out of hundreds of healthcare organizations with which I’ve worked, I’ve seen none that I would classify as universally mature, but many with pockets of brilliance.

When I think about those organizations that have applied analytics effectively to a specific issue such as enhancing emergency department throughput, tracking down narcotics diversion, or optimizing a care process, they’ve all gone through that prep process, but most have done it on a small scale.  And they’ve then built on one or more successes to expand the organizational vision for analytics.  Those pockets of brilliance light up other areas to which the same processes can be applied.  And by showing results, they keep people engaged and willing to put in the effort for more.

Maybe my mother would have been more successful had she only suggested they scrape off the old paint on a single wall before starting to paint.  Maybe seeing the results would have convinced my father of the value of doing it right.  And for most organizations, maybe an incremental approach to analytics, within an overall strategic information framework, can build and maintain the momentum to get the whole job done.

The post Scraping Paint: Incremental Analytics appeared first on Recommind.

For those in this industry, there is a laundry list of similar excuses: “we just don’t have the types of cases that justify advanced technologies” and “I just don’t understand how it works, so will keep doing it the same way I always have.”  Although I can countenance behavior of the person who is anxious to file and even pay their taxes, I just don’t understand how the same can be said of those dragging their feet when it comes to discovery.  How can your clients afford for you not to consider advanced technologies that save you time (and them money)?  Why do lawyers procrastinate when it comes to their professional livelihood?

Admittedly, there is no equivalent of April 15 for our profession – no date that someone has declared a drop dead date for adoption of technology.  But should there be?  Is there a time by which all (okay, I would settle for most) in the profession will become aware (if not well versed) in the technology that exists to aid the profession?  Should there be a time when to talk statistical sampling with a lawyer will not cause a look of confusion or distrust?  How long before we can talk intelligently at local bar functions about predictive coding without someone in the circle lamenting automation as the death of the profession?

Let me be clear: predictive coding is not a replacement for lawyers.  It is, however, a valuable strategic asset, which in the hands of a lawyer that understands how the technology works makes that lawyer far more valuable to his or her client than they would be without the technology.  The technology allows more substantive insight to huge volumes of data while drowning out the irrelevant noise in the data.  You not only review fewer documents, but you spend more time with the most important documents to your case.  Anyone who considers this as replacing the lawyer misunderstands the point.

So as those around you (and perhaps even you) scramble today to get receipts for business expenditures and medical expenses together, and you rush to e-file (or even head to the post office to wait in line) make a mental note: commit to yourself, beginning April 16, you are going to increase your knowledge on predictive coding technology, and work with your peers and colleagues to help them do the same.  Share an article about discovery technologies with your clients, and start a discussion on LinkedIn about better ways to serve their needs.  Challenge your partners and associates to develop new ways to provide higher quality legal services at a lower cost to the client. Not only will your clients thank you in the short run, but you will create a culture of learning that will safeguard the future of your organization as disruptive technologies emerge and infiltrate the legal market.

The post April 15 – are you an eDiscovery procrastinator? appeared first on Recommind.

These new rules require all parties involved to agree at the first case management conference the method and approach to disclosure. From a practical stand point, case management will become much more important much earlier in the process as lawyers and their clients will be required to discuss these issues up front. The new rules provide a veritable menu of disclosure options, from no disclosure, to disclosure by issue, to the wider disclosure that might prevail, for example, in a fraud case. The parties will also be required to estimate budgets for the disclosure process. This means that legal firms will require a tighter understanding both of the disclosure items and of how and where they have been stored, from the minute the case goes live. With an eye towards the rise of advanced technologies to assist in the discovery process, Practice Direction 31B states that technology should be used to ensure that document management activities can be undertaken efficiently and effectively. It also states that the use of proposed keyword searches as well as the use of automated search techniques should be discussed with a view to reducing the burden and cost of disclosure.

An Opportunity At Work

Although the new rules might concern some in the legal ecosystem, legal firms should recognize this as an opportunity to refine some existing practices, including reviewing how their clients store and retrieve relevant items for disclosure. I say ‘opportunity’ because effective and diligent management of data, in any form, can and does reduce costs, improve quality and result in a robust and defensible process. Far from being an imposition, the reforms are a stimulus to action that is set to drive some real efficiencies, particularly in the area of e-disclosure.  This is similar to the anxiety practitioners in the United States felt in the aftermath of the 2006 amendments to the Federal Rules of Civil Procedure.  Although those Rules are far from perfect, they do provide a framework for efficiency – even if some practitioners refuse to take advantage of them!

Many legal firms will find that they need to set up their files and data for storage in a more conscientious fashion to respond to the new requirements – and technology will prove invaluable in their efforts to do that.  Under these new rules, technology will have an opportunity to become a new ‘partner’ in the case process. Once firms feel positive about the advantages of using technology, their ability to address comprehensive file management and find their way around huge volumes of data will follow. Once that occurs, then the reforms will prove to be a step-change for many legal firms that will put their internal processes on a level footing with their corporate clients and will rebound positively through the whole organization.

A New Strategic Approach

Mark Surguy, a partner at global law firm Eversheds, says: “The costs of disclosure owe a great deal to the data explosion and the consequent need to manage electronically stored information by working closely from an early stage with technology partners such as Recommind.  This approach assists hugely in estimating the disclosure costs effectively.  There are lots of helpful technology tools for measuring data and review speed which make the budgeting process considerably more precise than has been the case in the past.”

Of course, technology is about more than software and the hardware that runs it – in order to be a truly strategic solution your technology must bring together people, the technology itself, and adapted workflows. It’s about a strategy that leaves no stone unturned in the organization or, to be more specific, in the systems and processes surrounding dossiers and files. Prior to April 1, we worked with law firms to accelerate this strategy to ensure readiness for the big day; we continue to work with other firms to help them get to where they need to be to address these challenges. The legal profession is now faced with tackling this issue head-on and, from a company perspective, the timing could not have been better. At Recommind we have been anticipating this challenge, having developed some of the most intelligent technologies that leverage data from complex and invariably unstructured data sources.

The legal profession can benefit from tools that drive keyword search to the next level and use predictive coding to bring order, control and ease of management to what might otherwise have been an onerous and expensive process. Frequently, more information comes to light than originally anticipated; some 70% of the cost of disclosure is said to arise from legal firms searching for information. It makes disclosure an expensive process. When as much of the disclosure process as possible is automated, however, it becomes easier to find what you’re looking for. Automation reduces the expense and speeds everything up; this allows lawyers to find what they need quicker than ever before.  This arms the lawyers with actionable information so strategy in the case can be the focus, as opposed to navigating huge volumes of data.

A Deeper Understanding from the Start

The post Lords of the Files appeared first on Recommind.

Growing Support for Information Governance

This lukewarm reception is discordant with other survey trends and calls to action from influential thought leaders, like Judge Peck who predicted that 2013’s main focus would be information governance:

“If 2012 was the year of predictive coding or technology-assisted review, 2013 or ’14 seems to be information governance.  …[I]t really would be helpful if systems were in place to get rid of the junk. Get rid of the ‘what time are we going to lunch’ emails that nobody bothers to delete,’ because that would help reduce the effort and cost of discovery whenever it’s needed,” he noted.

Also, seemingly in contrast to the 451 findings was another recent survey by the eDiscovery Journal, who have been highly focused on information governance for the past 2 years. In their survey, they found that defensible deletion (which is an early use case under information governance) had universal support. A nearly unanimous group of respondents (96%) affirmed that “defensible deletion of information is necessary in order to manage growing volumes of digital information.”

Identifying the Business Drivers

Like any new trend there will be early adopters who charge forward simply because of their internal needs. With information governance, this group is comprised of heavily regulated/litigated entities given the risks faced by failing to govern their information properly. But, for the rest, definitions and business drivers are key foundational elements needed to gain organizational support. This need for achieving maximum clarity in the early stages of information governance is particularly acute given the fact that a broad coalition is typically required to make progress (comprised of Legal, IT, Risk, Compliance, Infosec, business units).

In order to balance out this information equation it’s imperative to first quantify each of the business drivers by breaking down the risk, hard/soft cost and information value categories. Only then, can a ROI formula be divined, which can then lead to eventual information governance solutions.

Building the Business Case

To hear more about how to build the business case for information governance, I’m doing a webcast with noted eDiscovery expert Conor Crowley later this month. Please tune in with questions and comments…

The post Survey Reveals that Information Governance Needs Better Definition, Clearer Business Drivers appeared first on Recommind.

• America’s Health Insurance Plans (AHIP) received wide coverage around a recent study evaluating the prices paid by commercial insurers between 2008 and 2010.  This essentially blamed hospitals and other providers for the rapid increase in costs.
• The American Hospital Association (AHA) received slightly less coverage around its vehement rebuttals of the AHIP claims in which they stated that: “Today’s report is simply a rehash designed to divert attention from the harmful consumer impacts of health insurers’ own rising premiums.”
• A group called CPR – Catalyst for Payment Reform put out a highly covered report card giving 29 states failing report cards for pricing transparency laws
• A recent Time Magazine article by Steven Brill focused on the differential costs for the same care when paid for by Medicare, private payors and individuals paying out of pocket
• And then of course, there are increasing reports from the White House that US healthcare costs are beginning to level out

False Conclusions from the Headlines

The motivations behind the stories themselves, and more particularly the way they are spun, are varied.  Some focus on who to blame in challenging economic times and a highly charged political environment.   Some are positioning to take credit for transformation.  Some stem from a genuine desire to contribute to a conversation about how to “fix” the healthcare cost problem and misaligned incentives.  Most of the latter are thoughtful and attempt to look at the healthcare system in a nuanced and holistic fashion – but you’d never know that simply from the headlines.

I’ve been listening to, and participating in, this discussion for many years. It’s an important conversation, but I’m growing increasingly skeptical about the competing conclusions and prescriptions for change.  I’m particularly concerned with the assumptions that are made when the headlines – minus the nuance – filter down from the theorists to the person on the street.  Too often the result is an assumption that if we just fix the way we pay for healthcare, everything else will fall into line.

For example, I had dinner a while ago with the CIO for a large multi-specialty physician practice.  We were talking about the challenges of integrating care across settings.  He rather blithely stated that, in essence, fee for service is going away, and once we have bundled payments, the problems of care coordination will resolve themselves.

A Common Conversation In the UK

Recommind will be participating in the HC2013 conference in Birmingham, England in mid-April.  In preparation, I’ve been reading up on the latest round of changes to the National Health Service, and on some of the pressing healthcare issues in England.   Some would say that the British system has already solved for the payment misincentives that US payment reform is supposed to fix.  In reality, many challenges are common to both systems.

A survey of the topics that appear frequently in both environments includes:

• Care coordination/integration across settings: In theory, this is heavily influenced by payment models, yet consistent, high quality handoffs between providers and settings for care seem to be an issue in both nations.
• Quality of care: Quality of care issues are common stories in the US press, and have figured even more heavily in British healthcare news of late.
• Pay for performance/outcomes:   Public and private payors in both countries have adopted carrot/stick incentive programs based on quality measures.  While one study found a slightly higher rate of mortality improvement in an NHS program over a similar US program, all such initiatives have been promoted far more aggressively than the current evidence would seem to warrant.
• Variability in the care process:  Variations across providers, patients and regions contribute to poor quality and outcomes.  The Dartmouth Atlas of Care and the NHS Atlas of Variation provide ample documentation of variability under both systems.
• Economic sustainability: Can either nation afford its healthcare program as currently financed and given projections for the future?
• Rationing: Whether through conscious, thoughtful choices, through limited funding, or on a de facto basis via wait lists, both nations are grappling with this issue, though the US doesn’t always admit to it.
• Disparities/access to care: How can we eliminate disparities in access to care and health status across population segments, whether based on age, income, gender, race, ethnicity, or any other characteristic? Again, British universal coverage theoretically solves for this, but recent stories, for example around access to cancer treatment for older women, would call this into question.

Data and Analytics – A Missing Link

Clearly payment models alone aren’t enough to create the healthcare systems we all want.  And there are certainly plenty of other policy and market levers in play in both nations: competition, regulation, education, sharing best practices, etc.  As an information technology professional, I believe that data and analytics can and should contribute significantly to both the discussion and the solutions.

Unfortunately, that won’t happen until we move beyond the splashy headlines.

The post Universal Coverage, Universal Challenges appeared first on Recommind.

For those who were not able to make it, I thought you might be interested what sort of ideas are being cooked up that will impact your practice.  Now as usual, I am bound by the Rule that prohibits me from attributing points to any speaker or participant, but generally speaking here is what went on:

Cooperation – more than an academic buzzword?

Ever since the Sedona Conference released the Cooperation Proclamation there have been debates whether this is just academic idealism or if it will actually gain acceptance in the world of practice (especially in the types of cases that are not the traditional “Sedona-type” of cases; i.e. smaller cases with less tech-savvy counsel).  Kleen Products, LLC, et al v. Packaging Corporation of America was haled, among other cases, as the clearest recognition by the Court of the benefits of cooperation.  The literature surrounding this case is so voluminous that it need not be summarized here, but the point was clear that cooperation has gained acceptance beyond just the Sedona-ites.

That being said, there seemingly remains a disconnect between some of the commentators and practitioners in the trenches when it comes to how far you have to go when cooperating.  I for one believe in cooperation, but I recognize there are limits especially when it comes to disclosure of training sets when using predictive coding.  I believe the Rules of Civil Procedure envision cooperation between the parties, but I do not believe the concepts of cooperation change the Rules of Civil Procedure.  Until the Rules tell practitioners to disclose non-responsive information to the other side, I refuse to believe that a party should be expected to do so.  And if people mistakenly believe that they are compelled to show non-responsive information, I am pessimistic that we will see widespread adoption of technologies to streamline the discovery process.

Technology Assisted Review is ready for prime time

Now as a disclaimer here: I think predictive coding has been ready for prime time for some time already.  However, I understand the panelists’ perspective here, and the idea is that it is ready for prime time in the mainstream – not just to those immersed in the technology.  That being said, the overall impression of technology assisted review, including predictive coding, was positive.  A few points from the discussion stood out:

First, despite the fact technology was seen as an ally to the lawyer, there did seem to be a sentiment that technology assisted review should be held to a higher standard than traditional methods of review.  I don’t understand this at all.  For years, lawyers were perfectly comfortable employing byzantine methods of ascertaining what was in and what was out when it came to document productions (e.g., how did you decide that the documents in that banker’s box are not likely to have any responsive documents?).  Now that we actually have an effective way to locate and identify documents, we want to subject it to testing that the traditional “gold standard” methods would never have been able to pass?  Embracing the technology allows you a better way to provide legal services.  Subjecting it to higher levels of rigor than traditional review seems irrational.  I agree that some level of validation is needed, but it should have been required even in traditional review settings – for that matter, it should be required for traditional review methods if it is required for technology assisted review methods.

Secondly, when it comes to transparency there is wild disagreement about what is required or advisable when it comes to seed sets or documents used to train the system.  Obviously, in the Sedona world there is a lot of talk about transparency as part and parcel with cooperation, but this time there was much more of an opposition to unfettered transparency.  Some even commented that transparency in search methodologies has a chilling effect on cooperation; they explained that if that was part of cooperation, then perhaps cooperation was not the best approach.  I tend to think that is an overstatement, but I understand the concern.  As I stated above, I do not believe you are obligated to be transparent in your use of technology to streamline the review process; at least, not until the Rules require it.

Social and mobile are the new e-mail

A great deal of the discussions, and even more of the discussions during the happy hour and dinner, focused on the implications of social and mobile when it comes to eDiscovery.  Preservation was one of the sub-topics that garnered considerable attention, with most agreeing that the new standard for “possession” when it comes to this issue will focus on the “right to demand” the data from a third-party provider.  There was also a fascinating discussion regarding whether a party’s “practical ability” to retrieve data from a foreign source, or a third party, would be sufficient contact to render the foreign entity or third-party subject to the Court’s jurisdiction.  I can already envision the type of sadistic law school final exam question that could be drafted around this issue.

There was also a nice discussion about co-mingling personal and company information, and it was clear that many corporations are already re-thinking the BYOD policies that once seemed like such a good idea.  I wish I could say that this surprised me, but my Mayan-like ability to see the future was apparently right in this one instance.

The ethics of eDiscovery

As is customary at Sedona events, there was a segment that qualified for ethics CLE credits.  The conversation focused on the new ABA Model Rules and commentary for Rule 1.1 (competence) and Rule 1.6 (confidentiality of information).  For the initiated, this was very helpful but I did wonder what someone who does not practice in this space routinely would think about such discussions.

I was also intrigued by a few specific examples provided by the panelists and the lessons I took from those stories:

-       There was a lawyer who represented to the Court that given the complexities of eDiscovery they should allow at least 1 year to complete discovery.  The same lawyer represented to the Court that the case could be tried in less than a week.  LESSON: be careful in your representations to the Court because such obvious inconsistencies highlight the fact you don’t know what you are doing.

-       There were frequent instances of lawyers “contracting” around the issue of eDiscovery, by simply agreeing that no one would ask for emails in a case.  LESSON: lawyers who talk about not having a lot of “eDiscovery cases” are likely just saying they don’t know anything about the issue in the first place.

The conversation over cloud storage and the duty to prevent disclosure of client information was informative, though I sense that the State Bar Associations will be reluctant to ding practitioners until there is greater understanding within the bar itself over how these technologies work, and what will be a reasonable effort to prevent disclosure of client information.  You have to keep in mind that the Bar is run by attorneys, so those who are not well versed in the technology are not likely to hammer colleagues at this early stage.

What is the future of eDiscovery?

Of particular interest to me was the discussion about what they future held for the industry.  Unfortunately, it was nearly as imaginative as I hoped, but it was clear that corporations are going to take a hard look at the option to insource most of the eDiscovery function.  As luck would have it, later this week I am presenting a webinar on this same topic so I hope you will tune in and hear what is going on when it comes to who owns eDiscovery.

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