LegalTech NY 2008-Googling Your Document Review (E-Discovery Institute Session)

LegalTech 2008LegalTech always means a lot of vendor meetings and briefings, but I made a point to attend the “Breakfast Briefing” sponsored by the E-Discovery Institute entitled “Counselor, Why Can’t You Google It? – The End of the Multi-Million Dollar Document Review.”

The E-Discovery Institute is a relatively new, non-profit organization founded by Anne Kershaw (A. Kershaw, P.C.), Patrick Oot (Verizon), and Herb Roitblat (OrcaTec LLC).

The room was completely packed, mainly because of the star power of the panel that included Craig Ball, Esq., Julia Brickell, Esq. (Altria), Laura Kibbe, Esq. (Pfizer, Inc.), Jonathan Nystrom (Cataphora), and the Honorable David Waxse (District of Kansas).

Before we got to hear from the panel, however, Herb Roitblat provided some statistics from the Institute’s inaugural study based on a dataset from MCI-Verizon acquisition. The Institute will be releasing a white paper based on study in a few months. Ron Friedmann (who I finally got to meet in person) does an excellent job of covering the findings of the study on his blog.

Once the panel got going, there were some intriguing quotes flying around the e-discovery atmosphere:

Judge Waxse (District of Kansas):

  • There is NO requirement in the legal system for PRECISION. It only requires REASONABLENESS. (Ron Friendman also picked up on this.)
  • It is imperative for the legal profession to rely on technology to automate the discovery process since it’s obvious that relying on attorneys to perform large document review is inefficient and expensive.
  • Don’t forget proportionality – it’s in the rules but no one seems to focus on this enough. Judge Waxse stated that he would never overspend on a case just for the review portion.
  • Judge Waxse likes to see both sides solving the e-discovery issues without spending a lot of money (and without involving him if possible).
  • If one side proposes what appears to be a reasonable solution to an e-discovery blockade, and the other side cannot prove that the solution is UNreasonable, then Judge Waxse will probably side with you.

Laura Kibbe (Pfizer, Inc.)

  • Contract attorneys are the most unreasonable method of review [(i.e. costs and accuracy across the dataset)], but it’s what we’ve been doing for years and years.
  • [Referencing the study’s findings where human reviewers were less accurate than a computer-assisted review process, Ms. Kibbe declared:] the original dataset on the MCI-Verizon matter was wrong, but it was fine [(i.e. it was reasonable referring to Judge Waxse’s comment)]. So in reality, we just need to be ‘as bad as’ the Verizon set and we will be fine.
  • Ms. Kibbe forces collaboration on her outside counsel by not providing even one e-mail to review until they sit down with the opposing side to hammer out a plan for the collection and review of ESI. She encourages openness and honesty stating that transparency does NOT mean you are showing all of your cards. (Craig Ball seconded her statement by adding that every step of the process, every algorithm, must be exposed to the other side.)