The original invitation to Epiq Systems’ panel debate on judicial attitudes to technology assisted review said that the speakers would be Senior Master Whitaker and US Magistrate Judge Andrew Peck. That was enough to have me book my place, but Epiq subsequently rounded out the panel with the addition of Bob Lewis from Barclays Bank and barrister Shantanu Majumdar which made it even more interesting. Others obviously thought so too, because the room was packed despite (or perhaps because of) an 8:15 start. Epiq’s Laura Kibbe moderated with her usual style.
I will stick in this article to the term predictive coding, if you don’t mind, despite our host’s preference for one of the many other terms which describe broadly the same thing; I quite like my articles to be found in Google, and “predictive coding” is the term which people search for.
Bob Lewis leads Barclays’ initiative to bring much of the eDisclosure process in-house, acquiring software, building teams and developing processes to make the task as efficient and cost-effective as possible. I know Shantanu Majumdar because I have taken part in video seminars with him. What do you get if you add together the best in modern technology, a largely self-sufficient client, a barrister who understands eDisclosure and two of the most eloquent judicial advocates of technology as an aid to proportionate disclosure? Well, at the immediate level you get a well-informed panel; in the distance, a solicitor would see a cloud no bigger than a man’s hand which will one day, and not too far off, pose a significant threat to his business or, at least, to those members of the profession who cannot see which way the wind is blowing.
The technology reduces the need for manpower, and if you need bodies, then Epiq is amongst those who offer managed document review services. Sure, you will need a lawyer to give input on the law, the issues, the tactics and strategy. But does that have to be a firm of solicitors with all the lumbering apparatus which seems to come with the breed? Why not just find a switched-on barrister who will give input when you need it? If as a client you employ someone like Bob Lewis and his team, the attachment to solicitors to manage your eDisclosure begins to seem a luxury, a handling charge paid to people who are not adding much value. All you need then is a judge who understands a little – not a lot – about electronic disclosure.
All this, you understand, is my own musing derived from seeing this assembly of people on Epiq’s panel. It did not form part of the discussion, which was far more about the present and the immediate future. The best panels, however, make you lift your eyes beyond the next step and encourage you to look round the corners ahead. This one certainly did that.
The session was recorded on video which is available here. That makes it unnecessary for me to summarise the whole event. Instead, I will pick a handful of key points, particularly those which support the idea that the present reluctance to make use of the power of predictive coding is to ignore the best hope there is of making litigation affordable.
Laura Kibbe (pictured right) opened with the unarguable proposition that volumes are going up at a great rate – “the neck of the funnel keeps getting bigger” she said, and we need a more drastic reduction in the funnel. Why, she wondered, are lawyers reluctant to consider the use of technology assisted review – and she and the panel accepted that there is some reluctance. One of the challenges, she said, was to explain what was happening in terms which were easily understood Read the rest of this entry »