The Predictive Coding Soundtrack: Rewind, Play, Fast-Forward

Transcription

1 The Predictive Coding Soundtrack: Rewind, Play, Fast-Forward LEGALTECH NEW YORK February 3, 2015 Moderator: Amy Hinzmann Senior Vice President, DiscoverReady DiscoverReady 2014

2 THE PANELISTS* Marla Bergman Vice President, Associate General Counsel Goldman Sachs Elizabeth Jaworski Director, Legal Operations Motorola Daniel Pariser Partner Arnold & Porter Moderator: Amy Hinzmann Senior Vice President, DiscoverReady *The views expressed by the panelists are exclusively their own and do not reflect the positions of their employers or clients.

3 AGENDA Defining Predictive Coding/TAR Rewind: The History of Predictive Coding Play: How are we using (and not using) PC today? How to Make PC Cost-Effective Alternatives to Predictive Coding Fast Forward: How will we use PC in 2015?

4 Defining Predictive Coding/TAR

5 Defining Predictive Coding/TAR A combination of human and automated processes in which humans review a subset of documents, the computer analyzes those documents and decisions, and then the computer analyzes the remaining set of documents and recommends decisions for them. Maura Grossman and Gordon Cormack use the following: A technology-assisted review process involves the interplay of humans and computers to identify the documents in a collection that are responsive to a production request, or to identify those documents that should be withheld on the basis of privilege. 4

6 Rewind: The History of Predictive Coding

7 Rewind: The History of Predictive Coding Perceived to be a costsavings tool Use by defense vs. plaintiffs bars evolves Courts take a permissive, not prescriptive view The disputes have been outcome-prompted: parties contest its use when the production population is not what was anticipated 6

8 Play: What are we doing with PC today?

9 Play: What are we doing with PC today? When is PC being used and when not? Vendor and law-firm driven or client driven? If you are training a system, who are your experts? Are judgmental or random samples more defensible? Improves efficiency Prioritization of data Tier review sets Learn from prior productions 8

10 How to actually make PC Cost-Effective Does it actually save costs? Check with your vendor on the type of agreement you have Ensure that you have a process that integrates well with the technology Don t recreate the wheel every time 9

11 Alternatives to Pure PC Mixing PC with traditional methods Pure PC Using statistics to improve your PC results Using statistics to improve classic approach such as the application of keyword terms

12 Fast Forward: How will we use PC in 2015?

13 Fast Forward: How will we use PC in 2015? Detecting personally Identifying Information, or PII, such as: Name Telephone number Social Security Number address Address Driver s license number Birthdate Any other unique identifying Medical record numbers information Health plan beneficiary number Learning about prior data loads Privilege Redactions 12

14 Conclusion and Practice Points Consider whether and how PC might fit your case Assess the risks, costs, and potential savings Compare with alternatives to PC Don t be afraid to use PC in combination with tried-and-true approaches 13

15 Appendix Predictive Coding Case Law Review

16 The Failure to Cooperate and Do-Over Case Progressive Casualty v. Delaney, No. 2:11-cv-00678, 2014 WL (D. Nev. May 20, 2014) The parties agreed on an ESI protocol, which the court entered. After starting review, Plaintiff decided that the agreed-upon methodology (manual review of 565,000 docs that hit on agreed search terms) would be too time consuming and expensive. It decided unilaterally that it would instead apply predictive coding to the search term hit docs. The requesting party objected, citing the lack of transparency around the methodology and the failure to follow recommended best practices for the software program. Although it expressed support for the use of predictive coding generally, the court ordered Plaintiff to produce all of the search term hit documents, subject to a clawback order.

17 The Failure to Cooperate and Do-Over Case (cont) Progressive Casualty v. Delaney, No. 2:11-cv LRH-PAL, 2014 WL (D. Nev. May 20, 2014) Progressive proposes a "do-over" of its own invention that lacks transparency and cooperation regarding the search methodologies applied. Progressive is unwilling to engage in the type of cooperation and transparency that its own e-discovery consultant has so comprehensibly and persuasively explained is needed. Had the parties worked with their e-discovery consultants and agreed at the onset of this case to a predictive coding based ESI protocol, the court would not hesitate to approve a transparent mutually agreed upon ESI protocol. However, this is not what happened.

18 The Stop Whining and Use PC Cases Chevron v. Donziger, No. 11 Civ. 0691, 2013 U.S. Dist. LEXIS (S.D.N.Y. Mar. 15, 2013) (third party subpoena) Harris v. Subcontracting Concepts, No. 1:12-MC-82, 2013 U.S. Dist. LEXIS (S.D.N.Y. Mar. 11, 2013) (third party subpoena) In re Domestic Drywall Antitrust Litig., MDL No. 2437, 2014 U.S. Dist. LEXIS (E.D. Pa. May 12, 2014) (motion to compel answers to contention interrogatories)

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