The webinar anticipated in this post has now taken place. My report on it, and its fortuitous coincidence with a new UK case,  can be found in my post Getting expert evidence in front of the court which also includes a link to the recorded webinar.

H5, the San Francisco company specialising in information retrieval for litigation, investigations and related information management, are giving a webinar on Wednesday 10 December at 1-2 p.m Eastern / 10-11 a.m Pacific time. The full title is Finding a better way to search: Benchmarking E-Discovery Methods.

The premise for the webinar is that lawyers are looking for ways to meet their discovery obligations quickly, cost-effectively and with minimal risk, whilst judges are attaching increasing importance to the way in which searches are conducted – not just the technology but the related sciences of e.g. linguistics and statistics. The perceived importance of this lies in the often-quoted assertion by US Magistrate Judge John Facciola in US v O’Keefe that Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread.

H5 lay much stress on benchmarking – establishing objective criteria for evaluating and comparing different search methods. There is a benchmarking authority, the National Institute of Standards and Technology’s Text REtrieval Conference (TREC) Legal Track.

Specific topics to be covered include:

• The challenges of search and review in e-discovery, and advantages and disadvantages of traditional methods
• Evolving perspectives from the bench
• Criteria for making educated assessments of e-discovery search methods and technologies
• Guidance on building more defensible search and review processes
• An overview of the 2008 TREC Legal Track
• The practical application of sound measurement protocols to practitioners’ document review processes

The Moderator is Robert Bauer, the Chief Technology Officer of H5. The panelists are:

• Judge Paul W. Grimm, Chief Magistrate Judge for the United States District Court for the District of Maryland
• Jason R. Baron, Director of Litigation, National Archives and Records Administration; Editor-in-Chief, The Sedona Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery; and Founding Coordinator, TREC Legal Track
• Maura R. Grossman, Counsel, Wachtell, Lipton, Rosen & Katz
• Julia Brickell, Executive Managing Director and General Counsel, H5

Judge Grimm gave the Opinion in Victor Stanley v Creative Pipe which went the furthest in establishing the professional duty of those who purport to conduct searches.  He was on a judicial panel (which I have yet to write about) at the Masters Conference in Washington in October and is unlikely (on the form he showed there) to be shy with his opinions.

Jason Baron is one of the US thinkers who recognises that the UK rules and practice, with their emphasis on mandatory judge-led proportionate management, may have something which the US approach lacks. We meet at conferences on either side of the Atlantic, and he always has something stimulating to say.

I came across Julia Brickell at the Masters Conference, seeking her out at lunch on the strength of some acute observations which she had made at one of the sessions. They have a higher level of debate in the US, debate which remains firmly rooted in the daily needs of those managing cases.

The US judicial approach to search technology and techniques tends to frighten UK practitioners (those in the US find it pretty alarming as well). It is seen as elevating the subject away from lawyering and into the realms of abstruse science. The fear is misplaced, I think. No-one seriously argues with the core proposition that a lawyer must do the best job possible in searching for documents within the constraints of costs, time and proportionality. The main benefit which arises from this US-led focus on search is the technology which has been developed to meet the courts’ requirements. That is available to UK lawyers. If our target (and our estimate of what is proportionate) is rather different, the  tools, the ideas and the principles are the same.

See my post Getting expert evidence in front of the court for a follow-up to this.

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