Information Governance and Legal Functions
By Robert Smallwood with Randy Kahn, Esq. , and Barry Murphy
Information Governance and Legal Functions
C H A P T E R 8
Perhaps the key functional area that information governance (IG) impacts most islegal functions, since legal requirements are paramount. Failure to meet them can literally put an organization out of business or land executives in prison. Privacy, security, records management, information technology (IT), and business manage- ment functions are important—very important—but the most signifi cant aspect of all of these functions relates to legality and regulatory compliance.
Key legal processes include electronic discovery (e-discovery) readiness and as- sociated business processes, information and record retention policies, the legal hold notifi cation (LHN) process, and legally defensible disposition practices.
Some newer technologies have become viable to assist organizations in imple- menting their IG efforts, namely, predictive coding and g technology-assisted review (TAR; also known as computer-assisted review ). In this chapter we explore the need ww for leveraging IT in IG efforts aimed at defensible disposition, the intersection be- tween IG processes and legal functions, policy implications, and some key enabling technologies.
Introduction to e-Discovery: The Revised 2006 Federal Rules of Civil Procedure Changed Everything
Since 1938, the Federal Rules of Civil Procedure (FRCP) “have governed the discovery of evidence in lawsuits and other civil cases.” 1 In law, discovery is an early y phase of civil litigation where plaintiffs and defendants investigate and exchange evidence and testimony to better understand the facts of a case and to make early determinations of the strength of arguments on either side. Each side must produce evidence requested by the opposition or show the court why it is unreasonable to pro- duce the information.
The FRCP apply to U.S. district courts, which are the trial courts of the fed- eral court system. The district courts have jurisdiction (within limits set by Congress and the Constitution) to hear nearly all categories of federal cases, including civil and criminal matters. 2
116 INFORMATION GOVERNANCE
The FRCP were amended in 2006, and some of the revisions apply specifi cally to the preservation and discovery of electronic records in the litigation process. 3 These changes were a long time coming, refl ecting the lag between the state of technology and the courts’ ability to catch up to the realities of electronically generated and stored information.
After years of applying traditional paper-based discovery rules to e-discovery, amendments to the FRCP were made to accommodate the modern practice of discov- ery of electronically stored information (ESI). ESI is any information that is created or stored in electronic format. The goal of the 2006 FRCP amendments was to recog- nize the importance of ESI and to respond to the increasingly prohibitive costs of document review and protection of privileged documents. These amendments rein- forced the importance of IG policies, processes, and controls in the handling of ESI. 4 Organizations must produce requested ESI reasonably quickly, and failure to do so, or failure to do so within the prescribed time frame, can result in sanctions. This require- ment dictates that organizations put in place IG policies and procedures to be able to produce ESI accurately and in a timely fashion. 5
All types of litigation are covered under the FRCP, and all types of e-documents— most especially e-mail—are included, which can be created, accessed, or stored in a wide variety of methods, and on a wide variety of devices beyond hard drives. The FRCP apply to ESI held on all types of storage and communications devices: thumb drives, CDs/DVDs, smartphones, tablets, personal digital assistants (PDAs), personal computers, servers, zip drives, fl oppy disks, backup tapes, and other storage media. ESI content can include information from e-mail, reports, blogs, social media posts (e.g., Twitter posts), voicemails, wikis, websites (internal and external), word processing documents, and spreadsheets, and includes the metadata associated with the content itself, which provides descriptive information. 6
Under the FRCP amendments, corporations must proactively manage the e-discovery process to avoid sanctions, unfavorable rulings, and a loss of public trust. Corporations must be prepared for early discussions on e-discovery with all depart- ments. Topics should include the form of production of ESI and the methods for pres- ervation of information. Records management and IT departments must have made available all relevant ESI for attorney review. 7
This new era of ESI preservation and production demands the need for cross- functional collaboration: records management, IT, and legal teams particularly need to work closely together. Legal teams, with assistance and input of records management staff, must identify relevant ESI, and IT teams must be mindful of preserving and pro- tecting the ESI to maintain its legal integrity and prove its authenticity.
Legal functions are the most important area of IG impact.
ESI is any information that is created or stored in electronic format.
INFORMATION GOVERNANCE AND LEGAL FUNCTIONS 117
Big Data Impact
Now throw in the Big Data effect: The average employee creates roughly one giga- byte of data annually (and growing), and data volumes are expected to increase over the next decade not 10-fold, or even 20-fold, but as much as 40 to 50 times what it is today! 8 This underscores the fact that organizations must meet legal requirements while paring down the mountain of data debris they are holding to reduce costs and potential liabilities hidden in that monstrous amount of information. There are also costs associated with dark data— unknown or useless data, such as old log fi les, that takes up space and continues to grow and needs to be cleaned up.
Some data is important and relevant, but distinctions must be made by IG policy to classify, prioritize, and schedule data for disposition and to dispose of the majority of it in a systematic, legally defensible way. If organizations do not accomplish these critical IG tasks they will be overburdened with storage and data handling costs and will be unable to meet legal obligations.
According to a recent survey, approximately 25 percent of information stored in organizations has real business value, while 5 percent must be kept as business records and about 1 percent is retained due to a litigation hold. 9 “This means that [about] 69 per- cent of information in most companies has no business, legal, or regulatory value. Companies that are able to [identify and] dispose of this debris return more profi t to sharehold- ers, can use more of their IT budgets for strategic investments, and can avoid excess expense in legal and regulatory response” (emphasis added).
If organizations are not able to draw clear distinctions between that roughly 30 percent of “high-value” business data, records, and that which is on legal hold, their IT department are tasked with the impossible job of managing all data as if it is high value. This “overmanaging” of information is a signifi cant waste of IT resources. 10
More Details on the Revised FRCP Rules
Here we present a synopsis of the key points in FRCP rules that apply to e-discovery.
FRCP 1—Scope and Purpose. This rule is simple and clear; its aim is to “secure the just, speedy, and inexpensive determination of every action.”11 Your discovery effort and responses must be executed in a timely manner.
The amended FRCP reinforce the importance of IG. Only about 25 percent of business information has real value, and 5 percent are business records.
The goal of the FRCP amendments is to recognize the importance of ESI and to respond to the increasingly prohibitive costs of document review and pro- tection of privileged documents.
118 INFORMATION GOVERNANCE
FRCP 16—Pretrial Conferences; Scheduling; Management . This rule provides guide-t lines for preparing for and managing the e-discovery process; the court expects IT and network literacy on both sides, so that pretrial conferences regarding discoverable evidence are productive.
FRCP 26—Duty to Disclose; General Provisions Governing Discovery. This rule pro- tects litigants from costly and burdensome discovery requests, given certain guidelines.
FRCP 26(a)(1)(C): Requires that you make initial disclosures no later than 14 days after the Rule 26(f) meet and confer, unless an objection or another time is set by stipulation or court order. If you have an objection, now is the time to voice it.
Rule 26(b)(2)(B): Introduced the concept of not reasonably accessible ESI. The concept of not reasonably accessible paper had not existed. This rule pro-r vides procedures for shifting the cost of accessing not reasonably accessible ESI to the requesting party.
FRCP 26(b)(5)(B): Gives courts a clear procedure for settling claims when you hand over ESI to the requesting party that you shouldn’t have.
Rule 26(f): This is the meet and confer rule. This rule requires all par- ties to meet within 99 days of the lawsuit’s fi ling and at least 21 days before a scheduled conference.
Rule 26(g): Requires an attorney to sign every e-discovery request, re- sponse, or objection.
FRCP 33—Interrogatories to Parties . This rule provides a defi nition of business e-s records that are discoverable and the right of opposing parties to request and access them.
FRCP 34—Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes . In disputes overs document production, this rule outlines ways to resolve and move forward. Specifi cally, FRCP 34(b) addresses the format for requests and requires that e-records be accessible without undue diffi culty (i.e., the records must be orga- nized and identifi ed). The requesting party chooses the preferred format, which are usually native fi les (which also should contain metadata). The key point is that electronic fi les must be accessible, readable, and in a standard format.
FRCP 37—Sanctions . Rule 37(e) is known as the safe harbor rule. In principle, it s keeps the court from imposing sanctions when ESI is damaged or lost through routine, “good faith” operations, although this has proven to be a high standard to meet. This rule underscores the need for a legally defensible document man- agement program under the umbrella of clear IG policies.
The Big Data trend underscores the need for defensible deletion of data debris.
INFORMATION GOVERNANCE AND LEGAL FUNCTIONS 119
Landmark E-Discovery Case: Zubulake v. UBS Warburg
A landmark case in e-discovery arose from the opinions rendered in Zubulake v. U.B.S. Warburg , an employment discrimination case where the plaintiff, Laura Zubulake, g sought access to e-mail messages involving or naming her. Although UBS produced over 100 pages of evidence, it was shown that employees intentionally deleted some relevant e-mail messages. 12 The plaintiffs requested copies of e-mail from backup tapes, and the defendants refused to provide them, claiming it would be too expensive and burdensome to do so.
The judge ruled that U.B.S. had not taken proper care in preserving the e-mail evidence, and the judge ordered an adverse inference (assumption that the evidence was damaging) instruction against U.B.S. Ultimately, the jury awarded Zubulake over $29 million in total compensatory and punitive damages. “The court looked at the proportionality test of Rule 26(b)(2) of the Federal Rules of Civil Procedure and applied it to the electronic communication at issue. Any electronic data that is as ac- cessible as other documentation should have traditional discovery rules applied.” 13 Although Zubulake’s award was later overturned on appeal, it is clear the stakes are huge in e-discovery and preservation of ESI.
E-Discovery Techniques
Current e-discovery techniques include online review, e-mail message archive review, and cyberforensics. Any and all other methods of seeking or searching for ESI may be employed in e-discovery. Expect capabilities for searching, retrieving, and translating ESI to improve, expanding the types of ESI that are discoverable. Consider this potential when evaluating and developing ESI management practices and policies.14
E-Discovery Reference Model
The E-Discovery Reference Model is a visual planning tool created by EDRM.net to assist in identifying and clarifying the stages of the e-discovery process. Figure 8.1 is the graphic depiction with accompanying detail on the process steps.
Information Management. Getting your electronic house in order to miti- gate risk and expenses should e-discovery become an issue, from initial cre- ation of electronically stored information through its fi nal disposition
Identifi cation. Locating potential sources of ESI and determining their scope, breadth, and depth
In the landmark case Zubulake v. U.B.S. Warburg , the defendants were severelyg punished by an adverse inference for deleting key e-mails and not producing copies on backup tapes.
120 INFORMATION GOVERNANCE
Preservation. Ensuring that ESI is protected against inappropriate altera- tion or destruction
Collection. Gathering ESI for further use in the e-discovery process (pro- cessing, review, etc.)
Processing. Reducing the volume of ESI and converting it, if necessary, to forms more suitable for review and analysis
Review. Evaluating ESI for relevance and privilege Analysis. Evaluating ESI for content and context, including key patterns,
topics, people, and discussion Production. Delivering ESI to others in appropriate forms, and using ap-
propriate delivery mechanisms
SEVEN STEPS OF THE E-DISCOVERY PROCESS
In the e-discovery process, you must perform certain functions for identifying and preserving electronically stored (ESI), and meet requirements regarding conditions such as relevancy and privilege. Typically, you follow this e-disco- very process:
1. Create and retain ESI according to an enforceable electronic records reten- tion policy and electronic records management (ERM) program. Enforce the policy, and monitor compliance with it and the ERM program.
2. Identify the relevant ESI, preserve any so it cannot be altered or destroyed, and collect all ESI for further review.
3. Process and fi lter the ESI to remove the excess and duplicates. You reduce costs by reducing the volume of ESI that moves to the next stage in the e-discovery process.
4. Review and analyze the fi ltered ESI for privilege because privileged ESI is not discoverable, unless some exception kicks in.
5. Produce the remaining ESI, after fi ltering out what’s irrelevant, duplicated, or privileged. Producing ESI in native format is common.
6. Clawback the ESI that you disclosed to the opposing party that you should have fi ltered out, but did not. Clawback is not unusual, but you have to work at getting clawback approved, and the court may deny it.
7. Present at trial if your case hasn’t settled. Judges have little to no patience with lawyers who appear before them not understanding e-discovery and the ESI of their clients or the opposing side.
Source: Linda Volonino and Ian Redpath, e -Discovery for Dummies (Hoboken, NJ: John Wiley s & Sons, 2010), http://www.dummies.com/how-to/content/ediscovery-for-dummies-cheat- sheet.html (accessed May 22, 2013). Used with permission.
INFORMATION GOVERNANCE AND LEGAL FUNCTIONS 121
Presentation. Displaying ESI before audiences (at depositions, hearings, trials, etc.), especially in native and near-native forms, to elicit further infor- mation, validate existing facts or positions, or persuade an audience15
The Electronic Discovery Reference Model can assist organizations in focusing and segmenting their efforts when planning e-discovery initiatives.
Guidelines for E-Discovery Planning 1. Implement an IG program. The highest impact area to focus are your legal
processes, particularly e-discovery. From risk assessment to processes, com- munications, training, controls, and auditing, fully implement IG to improve and measure compliance capabilities.
2. Inventory your ESI. File scanning and e-mail archiving software can assist you. You also will want to observe fi les and data fl ows by doing a walk-through beginning with centralized servers in the computer room and moving out into business areas. Then, using a prepared inventory form, you should interview users to fi nd out more detail. Be sure to inventory ESI based on computer systems or applications, and diagram it out.
3. Create and implement a comprehensive records retention policy, and also include an e-mail retention policy and retention schedules for major ESI areas. This is required since all things are potentially discoverable. You must devise a comprehensive retention and disposition policy that is legally defensible.
Figure 8.1 Electronic Discovery Reference Model Source: EDRM (edrm.net)
Information Management
VOLUME RELEVANCE
Identification
Preservation
Processing
Review Production Presentation
Analysis
Electronic Discovery Reference Model/©2009/v2.0/edrm.net
Collection
The E-Discovery Reference Model is in a planning tool that presents key e-discovery process steps.
122 INFORMATION GOVERNANCE
So, for instance, if your policy is to destroy all e-mail messages that do not have a legal hold (or are expected to) after 90 days and you apply that policy uniformly, you will be able to defend the practice in court. Also, implementing the retention policy reduces your storage burden and costs while cutting the risk of liability that might be buried in obscure e-mail messages.
4. As an extension of your retention policy, implement a legal hold policy that is enforceable, auditable, and legally defensible. Be sure to include all potentially discoverable ESI XE “litigation:e-discovery”. We discuss legal holds in more depth later in this chapter, but be sure to cast a wide net when developing retention policies so that you include all relevant electronic records, such as e-mail, e-documents and scanned documents, storage discs, and backup tapes.
5. Leverage technology. Bolster your e-discovery planning and execution efforts by deploying enabling technologies, such as e-mail archiving, advanced enter- prise search, TAR, and predictive coding.
6. Develop and execute your e-discovery plan. You may want to begin from this point forward with new cases, and bear in mind that starting small and piloting is usually the best course of action.
The Intersection of IG and E-Discovery
By Barry Murphy
Effective IG programs can alleviate e-discovery headaches by reducing the amount of information to process and review, allowing legal teams to get to the facts of a case quickly and effi ciently, and can even result in better case outcomes. Table 8.1 shows the impact of IG on e-discovery, by function.
Legal Hold Process
The legal hold process is a foundational element of IG.16 The way the legal hold process is supposed to work is that a formal system of polices, processes, and controls is put in place to notify key employees of a civil lawsuit (or impending one) and the set of documents that must put on legal hold. These documents, e-mail messages, and other relevant ESI must be preserved in place and no longer edited or altered so that they may be reviewed by attorneys during the discovery phase of the litigation. But, in prac- tice, this is not always what takes place. In fact, the opposite can take place —employees can quickly edit or even delete relevant e-documents that may raise questions or even
Implementing IG, inventorying ESI, and leveraging technology to implement records retention and LHN policies are key steps in e-discovery planning.
INFORMATION GOVERNANCE AND LEGAL FUNCTIONS 123
implicate them. This is possible only if proper IG controls are not in place, monitored, enforced, and audited.
Many organizations start with Legal Hold Notifi cation (LHN) management as a very discrete IG project. LHN management is arguably the absolute minimum an orga- nization should be doing in order to meet the guidelines provided by court rules, com-g mon law, and case law precedent. It is worth noting, though, that the expectation is that organizations should connect the notifi cation process to the actual collection and preservation of information in the long term.
Table 8.1 IG Impact on E-Discovery
Impact Function
Cost reduction Reduce downstream costs of processing and review by defensibly disposing of data according to corporate retention policies
Reduce cost of collection by centralizing collection interface to save time
Keep review costs down by prioritizing documents and assigning to the right level associates (better resource utilization)
Reduce cost of review by culling information with advanced analytics
Risk management Reduce risk of sanctions by managing the process of LHN and the collection and preservation of potentially responsive information
Better litigation win rates Optimize decision making (e.g., settling cases that can’t be won) quickly with advanced analytics that prioritize hot documents
Quickly fi nd the necessary information to win cases with advanced searches and prioritized review
Strategic planning for matters based on merit
Determine the merits of a matter quickly and decide if it is a winnable case
Quickly route prioritized documents to the right reviewers via advanced analytics (e.g., clustering)
Strategic planning for matters based on cost
Quickly determine how much litigation will cost via early access to amount of potentially responsive information and prioritized review to make decisions based on the economics of the matter (e.g., settle for less than the cost of litigation)
Litigation budget optimization Minimize litigation budget by only pursuing winnable cases
Minimize litigation budget by utilizing the lowest cost resources possible while putting high-cost resource on only the necessary documents
Source: Barry Murphy, eDiscovery Journal http://ediscoveryjournal.com/l
LHN management is the absolute minimum an organization should imple- ment to meet the guidelines, rules, and precedents.
124 INFORMATION GOVERNANCE
How to Kick-Start Legal Hold Notifi cation
Implementing an LHN program attacks some of the lower-hanging fruit within an or- ganization’s overall IG position. This part of the e-discovery life cycle must not be outsourced. d Retained counsel provides input, but the mechanics of LHN are managed and owned by internal corporate resources.
In preparing for a LHN implementation project, it is important to fi rst lose the perception that LHN tools are expensive and diffi cult to deploy. It is true that some of these tools cost considerably more than others and can be complex to deploy; however, that is because the tools in question go far beyond simple LHN and reach into enter- prise systems and also handle data mapping, collection, and workfl ow processes. Other options include Web-based hosted solutions, custom-developed solutions, or process- es using tools already in the toolbox (e.g., e-mail, spreadsheets, word processing).
The most effective approach involves three basic steps:
1. Defi ne requirements. 2. Defi ne the ideal process. 3. Select the technology.
Defi ning both LHN requirements and processes should include input from key stakeholders—at a minimum—in legal, records management, and IT. Be sure to take into consideration the organization’s litigation profi le, corporate culture, and available resources as part of the requirements and process defi ning exercise. Managing steps 1 and 2 thoroughly makes tool selection easier because defi ning requirements and processes creates the confi dence of knowing exactly what the tool must accomplish.
IG and E-Discovery Readiness
Having a solid IG underpinning means that your organization will be better prepared to respond and execute key tasks when litigation and the e-discovery process proceed. Your policies will have supporting business processes, and clear lines of responsibility and accountability are drawn. The policies must be reviewed and fi ne-tuned periodically, and business processes must be streamlined and continue to aim for improvement over time.
In order for legal hold or defensible deletion (discussed in detail in the next section—disposing of unneeded data, e-documents, and reports based on set policy) projects to deliver the promised benefi t to e-discovery, it is important to avoid the very real roadblocks that exist in most organization. To get the light to turn green at the intersection of e-discovery and IG, it is critical to:
■ Establish a culture that both values information and recognizes the risks inherent in it. Every organization must evolve its culture from one of keeping everything to one of information compliance. This kind of change requires high-level ex- ecutive support. It also requires constant training of employees about how to create, classify, and store information. While this advice may seem trite, many managers in leading organizations say that without this kind of culture change, IG projects tend to be dead on arrival.
■ Create a truly cross-functional IG team. Culture change is not easy, but it can be even harder if the organization does not bring all stakeholders together when setting requirements for IG. Stakeholders include: legal; security and ethics; IT;
INFORMATION GOVERNANCE AND LEGAL FUNCTIONS 125
records management; internal audit; corporate governance; human resources; compliance; and business units and employees. That is a lot of stakeholders. In organizations that are successfully launching and executing IG projects, many have dedicated IG teams. Some of those IG teams are the next generation of records management departments, while others are newly formed. The stake- holders can be categorized into three areas: legal/risk, IT, and the business. The IG team can bring those areas together to ensure that any projects meet requirements of all stakeholders.
■ Use e-discovery as an IG proof of concept . Targeted programs like e-discovery,t compliance, and archiving have a history of return on investment (ROI) and an ability to get budget. These projects are also challenging, but more straightforward to implement and can address sub-sets of information in ear- ly phases (e.g., only those information assets that are reasonable to account for). The lessons learned from these targeted projects can then be applied to other IG initiatives.
■ Measure ROI on more than just cost savings . Yes, one of the primary benefi ts of ad-s dressing e-discovery via IG is cost reduction, but it is wise to begin measuring all e-discovery initiatives on how they impact the life cycle of legal matters. The effi ciencies gained in collecting information, for example, have benefi ts that go way beyond reduced cost; the IT time not wasted on reactive collection is more time available for innovative projects that drive revenue for companies. And a better litigation win rate will make any legal team happier.
Building on Legal Hold Programs to Launch Defensible Disposition
By Barry Murphy
Defensible deletion programs can build on legal hold programs, because legal hold management is a necessary fi rst step before defensibly deleting anything. The standard is “reasonable effort” rather than “perfection.” Third-party consultants or auditors can support the diligence and reasonableness of these efforts.
Next, prioritize what information to delete and what information the organiza- tion is capably able to delete in a defensible manner. Very few organizations are deleting information across all systems. It can be overly daunting to try to apply deletion to all en- terprise information. Choosing the most important information sources—e-mail, for example—and attacking those fi rst may make for a reasonable and tenable approach. For most organizations, e-mail is the most common information source to begin deleting. Why e-mail? It is fairly easy for companies to put systematic rules on e-mail because the technology is already available to manage e-mail in a sophisticated manner. Because e-mail is such a critical data system, e-mail providers and e-mail archiving providers early on provided for systematic deletion or application of retention rules. However, in
IG serves as the underpinning for effi cient e-discovery processes.
126 INFORMATION GOVERNANCE
non–e-mail systems, the retention and deletion features are less sophisticated; there- fore, organizations do not systematically delete across all systems.
Once e-mail is under control, the organization can begin to apply lessons learned to other information sources and eventually have better IG policies and processes that treat information consistently based on content rather than on the repository.
Destructive Retention of E-mail
A destructive retention program is an approach to e-mail archiving where e-mail messages are retained for a limited time (say, 90 days), followed by the permanent manual or automatic deletion of the messages from the organization network, so long as there is no litigation hold or the e-mail has not been declared a record.
E-mail retention periods can vary from 90 days to as long as seven years:
■ Osterman Research reports that “nearly one-quarter of companies delete e- mail after 90 days.” 17
■ Heavily regulated industries, including energy, technology, communications, and real estate, favor archiving for one year or more, according to Fulbright and Jaworski research.
■ The most common e-mail retention period traditionally has been seven years; however, some organizations are taking a hard-line approach and stating that e-mails will be kept for only 90 days or six months, unless it is declared as a record, classifi ed, and identifi ed with a classifi cation/retention category and tagged or moved to a repository where the integrity of the record is protected (i.e., the record cannot be altered and an audit trail on the history of the re- cord’s usage is maintained).
Newer Technologies That Can Assist in E-Discovery
Few newer technologies are viable for speeding the document review process and im- proving the ability to be responsive to court-mandated requests. Here we introduce pre- dictive coding and technology-assisted review (also known as computer-assisted review), the most signifi cant of new technology developments that can assist in e-discovery.
For most organizations, e-mail is the most common information source to begin deleting according to established retention policies.
Destructive retention of e-mail is a method whereby e-mail messages are re- tained for a limited period and then destroyed.
INFORMATION GOVERNANCE AND LEGAL FUNCTIONS 127
Predictive Coding
During the early case assessment (ECA) phase of e-discovery, t predictive coding is ag “court-endorsed process” 18 utilized to perform document review. It uses human exper- tise and IT to facilitate analysis and sorting of documents. Predictive coding software leverages human analysis when experts review a subset of documents to “teach” the software what to look for, so it can apply this logic to the full set of documents, 19 mak- ing the sorting and culling process faster and more accurate than solely using human review or automated review.
Predictive coding uses a blend of several technologies that work in concert:20 soft- ware that performs machine learning (a type of g artifi cial intelligence software that “learns” and improves its accuracy, fostered by guidance from human input and pro- gressive ingestion of data sets—in this case documents); 21 workfl ow software, which w routes the documents through a series of work steps to be processed; and text analyt- ics software, used to perform functions such as searching for keywords (e.g., “asbestos” in a case involving asbestos exposure). Then using keyword search capabilities, or con- cepts using s pattern search or meaning-based search, and sifting through and sorting documents into basic groups using fi ltering technologies, based on document content,g and sampling a portion of documents to fi nd patterns and to review the accuracy of g fi ltering and keyword search functions.
The goal of using predictive coding technology is to reduce the total group of documents a legal team needs to review manually (viewing and analyzing them one by one) by fi nding that gross set of documents that is most likely to be relevant or responsive (in legalese) to the case at hand. It does this by automating, speeding up, and improving the accuracy of the document review process to locate and “digitally categorize” documents that are responsive to a discovery request. 22 Predictive coding, when deployed properly, also reduces billable attorney and paralegal time and there- fore the costs of ECA. Faster and more accurate completion of ECA can provide valu- able time for legal teams to develop insights and strategies, improving their odds for success. Skeptics claim that the technology is not yet mature enough to render more accurate results than human review.
The fi rst state court ruling allowing the use of predictive coding technology in- stead of human review to cull through approximately 2 million documents to “execute a fi rst-pass review” was made in April 2012 by a Virginia state judge.23 This was the fi rst time a judge was asked to grant permission without the two opposing sides fi rst coming to an agreement. The case, Global Aerospace, Inc., et al. v. Landow Aviation, LP, et al., stemmed from an accident at Dulles Jet Center.
In an exhaustive 156-page memorandum, which included dozens of pages of legal analysis, the defendants made their case for the reliability, cost- effectiveness, and legal merits of predictive coding. At the core of the memo
Predictive coding software leverages human analysis when experts review a subset of documents to “teach” the software what to look for, so it can apply this logic to the full set of documents.
