It’s the week before Legal Tech 2013, so I naturally decided to spend this week traveling as well. The trip began the first part of the week in post-inauguration Washington D.C. and ended in frustration as most flights heading to Nashville from New York were cancelled due to ice. Despite the fact that I have yet to see any freezing precipitation, at least one airline had the nerve to fly last night, just not my airline. But I digress –so, what was going to be a short stay at the airport turned into a longer stay than anticipated. Nonetheless, the prolonged time at the airport did give me some time to catch up on some eDiscovery reading and reflect on a few of the more interesting stories from the last week or so.
Insourcing Litigation Support
Last month I channeled my inner Shakespeare and asked the question “to do, or not to do” when it came to insourcing or outsourcing eDiscovery services. Following that post, I have continued that discussion in other forums and the arguments on both sides are interesting and compelling. So I was naturally intrigued when I saw the article on LTN from Reed Smith attorneys Bryon Bratcher and Tom Baldwin in defense of insourcing such work. Of interest to me was the recognition that even when electing to insource much of the eDiscovery function there were still valid reasons to not “internalize every facet of the Electronic Discovery Reference Model.” But most importantly, it was a great example of the type of commitment I previously referenced about either getting in or getting out of the eDiscovery waters.
The key challenges facing these firms that elect to go with the insourcing model (or a hybrid insourcing model in the case of Reed Smith) will be attracting and retaining the top talent in the industry, procuring and maintaining the best technology available, and ensuring the processes and work flows are in place (and routinely audited and adjusted) – in other words, they face the same challenges that are faced by the eDiscovery vendors. I think the issue that is highlighted is that they already have to face those three challenges when it comes to delivering legal services, so they have doubled their challenges in effect. However, I still applaud those who are willing to get in and commit the resources to face the challenge and try to lead in the new legal landscape.
The Results Are In, and the Winner Is…
The Wall Street Journal Law Blog reported on the conclusion of the technology assisted review phase of document review being completed in the Global Aerospace case. My main take from the article was largely in how the story about predictive coding was reported – starting with how it was defined. The author commented that predictive coding is a general term for computers that use algorithms to review documents. Not quite. In fact, when I read that I cringed because it made it sound like predictive coding is a pseudo-science akin to astrology, when in fact it is ground upon scientific and statistical principles (i.e. akin to astronomy in this example). There was not sufficient discussion and examination about the people and the processes that work in harmony with the technology.
Nonetheless, in the author’s defense I did enjoy that he pointed out that the validation phase, which often becomes a point of contention between the parties, seems unique to the world of technology assisted review and predictive coding. For years there was no movement to check recall and precision rates in human linear reviews. In fact, I think it is likely that had such measures been used, many a judge would have informed counsel to go back and try again. Maybe the judge would have even suggested getting some high school students to assist… who knows.
Law Firm Technology Audits – Part Deux
One of the most anticipated stories from my perspective was the follow-up piece regarding Kia Motors now (in)famous technology audit. I loved the candid defense of the process from Kia Motors America corporate counsel, D. Casey Flaherty. Part one of the store was fascinating; and unlike many sequels, part two was equally compelling. It was an important retort to those who missed the initial point that failing to understand the technology on an individual level may not be fatal, but failing to have that expertise at the organizational level certainly is. I also enjoyed that Mr. Flaherty stressed the importance of the people and the processes when it comes to firm efficiency, and not just a blind reliance upon technology alone. It will be interesting to see how common this practice becomes, or if other corporate legal departments will be as candid in telling others that they do it and why. Perhaps a Part III will be forthcoming sometime soon.
I will be at Legal Tech next week, so look for some blogs and even a few podcasts. For those of you in attendance don’t forget to check out Dean Gonsowski’s #LTNYScavengerHunt for the things you must do this year. Can’t wait to see some Hawaiian shirts in below freezing weather! Safe travels to all.