I do not often look at an article and wish that I had written it, but that was my reaction to a comprehensive piece written by a team from law firm Milberg. Called Technology Assisted Review from the Plaintiffs’ Side (Milberg specialises in class actions against major corporations to judge by its home page), it begins by comparing our ready acceptance of some technology – remotely-performed heart surgery, spaceships on Mars, the victory of IBM’s Watson over the best Jeopardy players – with lawyers’ unwillingness to accept that advance search technology has any part to play in eDiscovery search.
They go on:
Yet we resist public acceptance of the notion that computer analytics can, at least in large cases with masses of electronic data, identify documents relevant to a lawsuit more effectively than lawyers composing lists of keywords. And despite abundant evidence, some lawyers do not want to accept that a computer running complex algorithms can locate key documents more reliably than a roomful of humans — a species that still considers perfect game play at tic-tac-toe to be a notable achievement.
That the legal profession is notoriously slow to adopt new technologies is hardly breaking news. However, the resistance among current practitioners to even consider the use of technology-assisted review, especially in large complex cases, is a particularly confounding episode of techno-legal disconnect. Even more confounding is the resistance to engage in open dialogue about the possibility of using TAR to facilitate cooperative, efficient, and expeditious discovery.
Instead of quoting the whole thing at you (I could, you know – it is that good), I just suggest that you read it. It is a comprehensive survey of the arguments and authoritative sources, case law and practical observations about methodology, including the all-important point about seeking approval from opponents (rather more important than that of the court perhaps) and agreeing a protocol.
It ends with an observation similar to one which I make often – that competence in the provision of legal services require an understanding of the technology which is available to help constrain the time and expense of eDiscovery. The clients are likely to get there first, the point with which the article ends:
The era of TAR is upon us; resistance is futile, not to mention counterproductive. Parties failing to use TAR in appropriate cases are squandering time and money. To be considered competent under the recently amended ethical rules, practitioners must keep abreast of emerging technologies. To provide excellent legal services in today’s environment, deeper knowledge of TAR tools is essential, along with the practical experience to implement them properly. Not every litigator can be an expert in e-discovery technologies. But every litigator should know when to find one.
This point is supported by a quotation from the recent RAND Report Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery, one of the many resources, judicial observation and cases referred to in the footnotes:
While the prospect of losing that revenue may cause some counsel to hesitate, the clients that stand to benefit most from TAR are sufficiently sophisticated and well-informed that they will soon adopt TAR with or without current counsel.
A comment by Johannes Scoltes of ZyLAB rounds off this last point:
Without TAR, it will be impossible for law firms to be competitive in the very near future.
I agree. Read the Milberg article and then see if your old assumptions still stand up. If they do not, then make a call to one of the providers of predictive coding software and related services and ask for a look. They won’t charge you for a demo and they will do it over the web if you don’t have time for a meeting. It would be – how can we put this as moderately as possible? – neglectful not at least to know what these applications can do.