As you would expect from the CEO of a company which set out to challenge eDiscovery norms, the 2015 eDiscovery predictions from Cicayda CEO Roe Frazer include a few which are intended to provoke. Indeed, he opens by accepting that the word “prediction” might be a bit strong, because some of them “are intended to be encouragement to innovators, thinkers, and entrepreneurs.”
Most of it, however, is spot-on. He would be a bit disappointed if I agreed with everything he says.
His first prediction, for example, about predictive coding, whilst correct in its closing assertion that “we will see real battles over predictive coding in 2015″, recites some of the difficulties inherent in the use of what is still relatively new technology. Predictive coding has passed the early-adoption phase, for US courts well as users. Its most ardent advocates would not say that it is right for every case; an increasing number of lawyers are using it for an increasing number of cases. The real message on functionality and defensibility, as well as on Roe Frazer’s later point about the costs of using eDiscovery software, is that lawyers must become familiar with all of them and adept at ferreting out the true costs of using them.
Roe Frazer would say of Cicayda that it is extremely easy to identify the costs of using Cicayda’s products because the pricing model is straightforward and transparent. Have a look at the technology for yourself: Cicayda does a good online demo, as do some of the companies offering predictive coding. Half an afternoon watching first one demo and then the other will help you identify the main differences, and the similarities, between them – not just the technology, but the pricing models and what they really mean. That approach would also allow you to compare another provider’s predictive coding (itself a term which describes a range of approaches) with Cicayda’s analytical tools.
The other of Roe Frazer’s points on which I take a different view is his Prediction 6 and the assertion that “No one cares about costs shifting if it gets you the documents you need to win your case”. I come from a jurisdiction in which costs shifting is the norm, and there is no greater control on extravagant and unnecessary eDiscovery demands than the possibility that the aggressor might end up picking up all the costs of both sides in respect of the unwarranted demand (or, indeed, of the unwarranted challenge to a demand).
Roe Frazer is right, of course, to point out that arguments about costs shifting will speedily move to a close focus on the components of the eDiscovery costs. “Why did you choose this tool when that one would have done the job for a fraction of the price?” speedily becomes a compelling one when opponents and the court have the right to enquire into what is being spent and why. Even better is the idea that one party can challenge another’s approach before the costs are incurred, as the budget regime in the UK requires. That, more than anything, will expose the benefits of clear and transparent eDiscovery costs because a party will be stuck (at least as regards recoverability) with the sums in the budget.
While the court may limit costs on other grounds, costs shifting provides the best reason for that anticipatory analysis of scope, method and prospective expense. This is an area on which one can take different views without falling out, particularly when there are significant differences between our respective jurisdictions.
It is hard to disagree with most of the rest of Roe Frazer’s predictions. He says (Prediction 2) that companies will begin to govern their data proactively, going beyond mere document destruction and into anticipatory use of technology to identify problems before they give rise to litigation or a regulator’s gaze.
The Internet of Things (Prediction 3) and social media data (Prediction 4) will indeed become significant components of eDiscovery in cases of all sizes. It is important to have technology which can handle these things. My prediction for the year involves a prior stage – before you consider what technology to use for social media you have to apply your mind to the question whether there is any which might be relevant; this will be the year when lawyers are caught on the hop because they did not apply their minds to the importance of one of these new sources of discoverable data – not just because the rules require it, but because it contains evidence. As Roe Frazer says, you need software tools capable of finding that evidence, and doing so proportionately.
One of Roe Frazer’s predictions came true in between my starting and finishing this post. He says (Prediction 10) that we can expect US approval of Alternative Business Structures in jurisdictions which have stubbornly refused to consider them. An article in the English Law Society Gazette reports, in an article headed US moves to liberalise are ‘just the beginning’ that Washington State Bar Association is moving in just that direction by authorising non-lawyers to advise clients on legal matters.
Of all Roe Frazer’s predictions, the one I most want to see is his Prediction 12 – the dropping of the “e” in the terms eDiscovery and eDisclosure. Whether or not we have an interim stage in which we refer to “pDiscovery” or “pDisclosure” is open to question, but we must surely have already reached a stage where the need to distinguish between electronic and other information has gone.
Cicayda is not just about technology. It is also driven by a conviction about the accessibility of justice. Cicayda’s Marc Jenkins has written an article called eDiscovery for 21st-century Lawyers on the Stanford University Codex site in which he eloquently pairs technology and justice – using the one is a pre-requisite for delivering the other. Justice which most people cannot afford is not justice at all.
As a post-script, I will shortly be publishing the set of photographs, taken in Prague, from which the picture of Roe Frazer above is taken, I also have a rough-cut of a video interview with him, for publication shortly, in which he expands on what he says about predictive coding and Cicayda’s alternative approach to the computer-assisted review.