Predictive Coding as a Means to Prioritize Review and Reduce Discovery Costs. White Paper

Transcription

1 Predictive Coding as a Means to Prioritize Review and Reduce Discovery Costs White Paper

2 INTRODUCTION Computers and the popularity of digital information have changed the way that the world communicates and conducts business. Today, electronically stored information ( ESI ) not sheets of paper has become the primary archival format used by both professional organizations and individuals. In many cases, these ever-growing digital repositories are a valuable business or personal resource; it s never been easier to find old work product or analyze trend changes over time. However, when legal disputes arise, our treasure troves of data riches can easily turn into a significant liability; the front-loaded cost of comprehensively inventorying, collecting, and above all, reviewing large amounts of information to ready it for production to an opponent can drive a business to decide to avoid litigating a dispute, even when it believes it has compelling legal support for its position. Preserving litigation as a viable method of resolving disputes requires creative thinking. Cutting litigation costs is easier said than done. Limiting the time a legal team can spend on developing a case can be a penny-wise, pound-foolish financial (and legal) exercise why spend any money on a case if you won t be giving it a reasonable chance of success? After all, lawyers still need time to conduct legal research and write briefs. Lawyers and clients alike remain eager for as much court time to present their arguments as they are permitted. And discovery materials need to be understood so that a legal case can stand on a firm foundation of supporting facts. Fact discovery, however, has in fact emerged as one area of litigation development where creative thinking, combined with new technology-based tools, can reduce costs without compromising quality. In particular, re-assessing traditional ideas about document review has demonstrated that changing these paradigms can increase efficiency and knowledge about the collection, even while stabilizing or even reducing labor costs. KEY WEAKNESSES OF TRADITIONAL DOCUMENT REVIEW Litigation discovery document review is traditionally viewed as a defensive matter. Critical goals include: (1) separating responsive and non-responsive documents; and 2) identifying privileged documents and preventing their production. A third goal, identifying documents of critical importance, is often included as a document review objective, albeit with the expectation that few documents will meet this criteria and that the case may not be sufficiently developed at the time of the review to identify most of these documents. Because of the significant exposure that can result from the inadvertent disclosure of privileged documents, legal teams have recommended for years that a comprehensive 2

3 review of all documents in the collection for privilege is necessary. That way, even if one or more privileged documents slip through the review, the legal team can easily demonstrate their good-faith efforts to isolate these materials, substantially limiting potential privilege waiver. Unfortunately, a consequence of this review paradigm is that teams try to review every document in the collection for legal privilege, with relevance and key document review analysis almost secondary to privilege determinations. Moreover, the comprehensive nature of such reviews requires a large review team and, equally important, consumes significant time. And, as several ongoing studies have shown, results of this review will contain numerous errors, including the likelihood that some privileged documents will be overlooked or mis-categorized by document reviewers. There is a better way. CHANGING THE ASSUMPTIONS OF DOCUMENT REVIEW One significant shortcoming of the traditional document review paradigm is that it relies on several assumptions that aren t necessarily true. For example, traditional review is based on the belief that all documents, prior to their review, are of equal potential value. That s why each must be individually reviewed to determine their actual relevance and privilege status. Unfortunately, this belief is inconsistent with most discovery document collections assembled today for litigation. Discovery document collections have always contained a small scattering of important or potentially privileged documents interspersed between many, many irrelevant or barely relevant documents. The question is whether these documents are spread evenly across the collection, or whether it is possible to identify areas richer in relevant documents. One approach to this problem is through the use of metadata; For example, privileged communications and attorney work product are typically created or received by only a few individuals; it is extremely unlikely that privileged communications will be spread equally through an organization s employees and data repositories, even if these repositories contain other information relevant to the dispute. Similarly, a document s source or author can suggest whether a document has a greater or lesser chance of containing significant relevant information. An even more intriguing view of the document collection, however, can be found by using a computer-driven analytical solution, such as Equivio>Relevance, that takes a legal team s understanding of the case and applies it to an entire document collection, creating a hierarchy of documents from most to least relevant. This approach allows the team to leverage the knowledge and capability of a case expert, one whose understanding of the case is second-to-none. The expert trains the software by tagging sample documents. The software uses these tags to learn to distinguish relevant and 3

4 non-relevant documents, and privileged and non-privileged documents. Once the training has optimized, the software can consistently tag all the documents in the collection, based on the expert s understanding of the case. It s important to note that these relevance scores are only as good as the analysis from which they were derived, and thus the role of the expert is crucial. LEVERAGING DOCUMENT RELEVANCE TO OPTIMIZE DOCUMENT REVIEW GOALS Organizing a discovery document collection by potential relevance opens up entirely new ways of approaching document review that increase efficiency and lower costs. In particular, document relevance can be used to organize the review effort, accelerating and fine-tuning the review based on the rapid acquisition of knowledge in the initial stages of the review. For example, in a document collection organized by potential relevance, the review initially focuses on the documents likely to be most relevant. In addition to assessing the importance of these documents and examining them for possible legal privilege, this review would also provide additional valuable information that would be used to structure and inform further work on the project. Results of this initial phase of the document review, with its focus on the most relevant documents, may reveal additional substantive insight into the case. Are the demographics of this document collection i.e., the authors and recipients of these most relevant documents the ones expected by the legal team? Sorting documents by their potential relevance can help quickly identify additional key players or reduce the number of suspected key players in the case. Similarly, close analysis of this subset of documents may help narrow or widen the date range in which key communications and activities took place. All this can take place early in the case, and after only a fraction of the total possible review time. Analytical results from this first phase should be used to shape further phases of the review. The intense early review of the most relevant documents in the case allows for rapid knowledge acquisition by the review team. This can facilitate the review leadership group s role, enabling them to refine their view of the case. By adjusting their guidance to the review team early on, any possible subsequent need for revisiting the review is circumvented. The prioritized approach also facilitates close control of the review effort. The prioritization of the material gives the review team a better chance of finding the information it is looking for, without having to review the entire collection. In other situations, as the case progresses, case management can monitor the yield of relevant documents. Unlike traditional review, where relevant and irrelevant documents are 4

5 mixed together in an unknown concentration, the decision to continue the document review at any given point would be driven by metrics that suggest that further review is appropriate and proportional. Once review results drop below a certain threshold, the review may be wound down, supported by the defensible argument that it would not be reasonable to continue examining documents of little or no relevance to the case. This phased approach can also reduce costs by enabling stratified review. Under this approach, the initial subset of very relevant documents could involve senior and in-house resources. Subsequently, these relatively expensive resources can start building their arguments for the case, while lower-cost junior or contract attorneys can be used to complete the review. CONCLUSION American-style litigation has faced many challenges over the years, and some critics of the system believe that exponential increases in fact discovery volume and costs have priced legal relief beyond the reach of many smaller litigants. However, prioritization by relevance can facilitate a view of discovery document review as a series of phased tasks instead of one very large project. This prioritized strategy has the potential to substantially reduce overall litigation costs by decreasing the time and expense associated with fact discovery. In particular, organizing and reviewing discovery documents in order of declining relevance permits the legal team to get particularly efficient insight into a document collection, along with defensible data that can help the legal team determine the point beyond which further review no longer makes sense. Removing the low-scoring documents from individual substantive review saves money on multiple fronts: a dramatic reduction in billable document review time and reduced downstream costs involved with preparing a smaller document production. In addition, stacking the deck to focus on the most relevant documents before turning to ones likely to be of marginal relevance provides other tangible benefits. Seeing key documents early in the review will provide faster, more comprehensive understanding of the discovery document collection, permitting a litigant to fine-tune its legal strategy at an earlier stage in the proceedings. Greater early knowledge can also help a litigant more accurately value its case, at an earlier point in the case development (and litigation expense) process. Finally, better case information can greatly enhance any mediation or settlement negotiations; a litigant that is fully informed about the strengths and weaknesses of its case can argue its position with greater authority and effectiveness. 5

6 ABOUT EQUIVIO Equivio develops text analysis software for e-discovery. Users include the DoJ, the FTC, KPMG, Deloitte, plus hundreds of law firms and corporations. Equivio offers Zoom, an integrated web platform for analytics and predictive coding. Zoom organizes collections of documents in meaningful ways. So you can zoom right in and find out what s interesting, notable and unique. Request a demo at info@equivio.com or visit us at Zoom in. Find out. Equivio, Equivio Zoom, Equivio>NearDuplicates, Equivio> Threads, Equivio>Compare, Equivio>Relevance are trademarks of Equivio. Other product names mentioned in this document may be trademarks or registered trademarks of their respective owners. All specifications in this document are subject to change without prior notice. Copyright 2012 Equivio 6