Using the latest technology involves more than buying or upgrading your software. All technology is only as good it’s users. Case in point is predictive coding. On the one hand, user interfaces are improving to the point where most of the bookkeeping involved in analysing the results is hidden away. However, predictive coding initially relies on humans to make critical decisions regarding a set of documents that are responsive and non-responsive. The technology then takes over. The more knowledgeable that the humans are in creating the “seed set” of documents, the more accurate the predictions will be when technology is applied to an entire data set.

This is where the issue lies. As the technology advances, the practitioners who use it need to advance along the way. Legal professionals need to become far more conversant in how the computer algorithms work. Certainly they don’t need to be able to write the algorithms or even develop the statistical models, but they do need to understand some of what goes on “under the hood”.

There are some key questions that legal professionals who must utilize technology to manage electronic evidence in today’s legal environment should be addressing:

• Are you adopting to new technology?
• Can you use the technology to gain a competitive and strategic advantage, reduce costs, make better business decisions, enhance operational efficiencies, and/or better manage legal projects to achieve defensible results?
• Is your staff properly trained to use technology?
• Does the legal industry provide properly training to use technology?
• Are your legal service providers making sound technology investment decisions and hiring competent subject matter experts?

Legal professionals need to have in place a well developed technology utilization program otherwise they will fall behind and be overwhelmed with the volume, complexity and high costs associated with managing information and data.

The overall e-discovery process involves more than just collecting, processing and hosting digital information. There are more subtle aspects, such as aligning the legal drivers with the client’s information mosaic to target the right set of records, ensuring that the information keepers (IT professionals) are comfortable and receptive to the preservation and collection approach. Advice is also required to strategically plan and manage the review process to ensure that the costs of this step of the e-discovery-related process is controlled.

Although there are myriad criteria that should be considered before choosing an e-discovery advisor, knowledge and experience are by far the most important. Your advisor must be well versed in both IT technology and legal procedures. He or she should also be in a position to offer unbiased advice – from proposing information sources for preservation, to recommending the best platform and managed process for reviewing the documents. An advisor that is not tied to one or a handful of software solutions, and whose fees are not dependant on the volume of data collected or processed, will be able to provide you with the best strategic counsel.

Wortzman Nickle’s Technical Strategies group provides e-discovery advisory services for both corporations and law firms.

Of course, we are further cautioned to limit the information we post to social media sites, regardless of whether it is “private” or “public”, if we want to ensure privacy.  Even in Canada.

Companies checking the Facebook accounts of prospective employees is not new. It has become commonplace for HR departments and managers to both “Google” applicants and to see if they have Facebook accounts. It makes good business sense to do this. However, where the accounts had privacy setting restricting access to certain people or networks, that was the investigative end of the road for the employer. No longer.

Some employers (most published stories attribute this phenomenon to American companies) have taken to asking job applicants for their Facebook user names and passwords. This enables the employers to see the full content of any Facebook page attributed to the applicant.  Other strategies include producing a computer and having the applicants sign on to Facebook during the interview, or requiring the applicant to “friend” the company’s HR manager.

Predictably, in today’s tough job market, many applicants are providing the information, believing they have little choice if they want the position.

However, isn’t this like letting the prospective employer into your home to rifle through your closets and drawers? Or permitting him/her to read your diary?  Or to call your friends from high school?  Why is personal Facebook access on the table now, when these other invasions of privacy are not? Should we be afraid to ask what’s next?

It is clear that the pendulum has swung too far. People (even job applicants) are entitled to their privacy, if they’ve had the good sense to maintain it thus far. This type of employer conduct may be justified if hiring an individual for some sort of high level security job. For most positions, it is sufficient to see if a candidate has a Facebook page. If the applicant has had the good sense to restrict access to his or her page, that good judgment should be good enough.

First, we assume that the lawyers who apply for document review positions are legally qualified to review and assess documents for relevance/responsiveness, privilege, etc., although some may be better qualified if they have prior document review experience.  Some lawyers may have a better aptitude for document review projects than others – one only needs to work on a project before knowing the answer to that question.

Beyond qualifications and aptitude, here are some traits that we believe make excellent document review lawyers:

• Professional – punctual for training and conference calls, dresses appropriately for the training and working on-site, stays alert and interested during the training session.  While these points seem obvious, they are important as to how we represent ourselves as a team.

• Team Player – follows the workflow protocols defined at the outset of the project, participates in team conference calls, and accepts and applies feedback.   Following the protocols in place make it so much easier with large teams.

• Flexible – both in terms of hours (we are often under time constraints that require extra hours on the weekend) and in focus.  Sometimes we are required to code records (for relevance or privilege for example) in a manner that is contrary to our law school training or practice.  Our supporting role as review lawyer requires an understanding of the bigger picture.

• Tech Savvy – while an IT background is not necessary, it does help to be comfortable with technology.   Having a good understanding of the hardware and software components are helpful.

The benefits of working as a review lawyer are personal to each one, but the one we hear most often are flexibility, which allows the lawyer to juggle other aspects of their life, while keeping their legal skills sharp.   Many of our review lawyers enjoy delving into varying types of cases that they would not otherwise be exposed to in a practice environment.

Perhaps it is the “contract” idea that leads some to think of these positions as casual; however, we view all of our review lawyers as critical to e-discovery process and value them immensely.

Susan Wortzman – Having enjoyed a relaxing holiday, I have read several Famous Five Adventure books by Enid Blyton with my son, tossed in with some Hardy Boys and Pokemon.  For me, I read Olive Kitteridge by Elizabeth Strout, which I found a little slow, but with great characters.  On the faster side, The Drop by Michael Connelly was his typical, fast paced Harry Bosch story. Great entertainment.  I am now finally enjoying State of Wonder by Ann Patchett.  Took me a while to get started on it, but I am really loving it now.  Ann Patchett also wrote Bel Canto, Run and The Patron Saint of Liars. I read and loved them all.

Susan Nickle – I am finishing When God Was a Rabbit and Jack, A Life With Writers. Also, Carys and I are reading Harry Potter and the Philosopher’s Stone together. She is loving learning about all of the characters and I am enjoying sharing the experience with her.

Chuck Rothman – I’m reading “It Never Snows in September: the German View of Market-Garden and the Battle of Arnhem, September 1944”.  It’s about the battles fought in southern Holland, as famously recounted in the book and movie, A Bridge Too Far by Cornelius Ryan, but from the German’s point of view. I find the discussion about motives and feelings of individual soldiers very interesting, particularly because, by this time in the war, most German soldiers knew the war was lost, but they kept on fighting anyway.

Rachael Chadwick – I don’t like to give up on a book, but I’m 293 pages into 1Q84 by Haruki Murakumi (which is 1030 pages long), and I’m eyeing the other books I have loaded onto my eReader….Annabel by Kathleen Winter and The Midwife of Venice by Roberta Rich.  I might have to bookmark my spot in 1Q84 and try again later…..

While products were not much changed, we did note a change in the way the products were promoted.  Many vendors began their sales pitch by telling us why their competitors’ products did not work, and only their own products could meet our requirements. Perhaps this was due to it being a primaries year in the U.S., or it was a result of the lack of progress in software design since last year. Whatever the reason, it did somewhat dampen our overall experience. We most appreciated the vendors who proudly demonstrated their own wares without slamming the product next door.

The lack of real innovation may be due to a maturing e-Discovery industry. But, we are still optimistic as both products and processes continue to improve.  The goal remains to develop solutions to reduce  the cost and effort to identify, collect, review and produce electronic information.

As expected, Predictive Coding led the charge of buzz words once again this year. Many vendors offered their flavour of machine learning technology. However, some vendors appear to have realized, as we have, that Predictive Coding alone will not solve the dilemma of ever increasing e-discovery volumes and ever decreasing budgets and timelines. These forward thinking software developers are now integrating Predictive Coding into a package that includes all the tried and true e-discovery technologies, such as concept clustering, near duplication, email threading, and our trusted friend, keyword searching.

While there are many claims of unique Predictive Coding approaches, they all generally fall into one of two main categories – either quickly teach the computer up front what you’re looking for and then have it find your relevant documents, or let the computer observe as you search and find relevant documents using other methods, so that it can subtlety influence the result and present you with more likely relevant documents to review.  Both methods should theoretically end up with the same results.

Wortzman Nickle will be exploring these two approaches over the next couple of months and report in upcoming blogs and papers on the costs and benefits of each methodology.

It is widely expected that cloud computing and social media will have a significant impact on the way e-discovery is conducted. However, the study showed that it’s not high on corporate IT’s radar quite yet. In fact, it was found that:

• Less than 16% of respondents put an e-discovery plan into place before moving data into the Cloud
• About 26% did not put a plan in place
• A whopping 58% didn’t know if e-discovery was considered when data was moved to the Cloud (which probably means it wasn’t considered)

While the number of players in this area is still quite low, this report should be a wakeup call that organizations need to consider e-discovery in conjunction with the adoption of new technologies.

Wortzman Nickle can help you navigate through the ocean of new technologies and their impact on e-discovery and records management.

1. Records Management is Everyone’s Role: the volume and diversity of business records, from emails to reports to tweets, means that the person who creates or receives a records is in the best to classify it. Everyone in the organization needs to adopt the records management programme.

2. Don’t Micro-Classify: having hundreds, or possibly thousands of records classification categories may seem like a logical way to organize the multitude of different records in a company. However, the average information worker, whose available resources are already under pressure, does not want to spend any more time than necessary classifying records. Have a few, broad classifications makes the decision process simpler and faster.

3. Talk the talk from the top on down: A culture of compliance starts at the top. Businesses should establish a senior-level steering committee comprised of executives from legal, compliance, and information technology (IT). A committee like this signals the company’s commitment to compliant records management and ensures enterprise adoption.

4. Walk the walk, consistently: For compliance to become second nature, it needs to be clearly communicated to everyone in the organization, and policies and procedures must be accessible. Training should be rigorous and easily available, and organizations may consider rewarding compliance through financial incentives, promotions and corporate-wide recognition.

5. Measure the measurable: The ability to measure adherence to policy and adoption of procedures should be included in core business operations and audits. Conduct a compliance assessment, including a gap analysis, at least once a year, and prepare an action plan to close any identified holes.

The growth of data challenges a company’s ability to use and store its records in a compliant and cost-effective manner. Contrary to current practices, the solution is not to hire more vendors or to adopt multiple technologies. The key to compliance is consistency, with a unified enterprise-wide approach for managing all records, regardless of their format or location.