The Lawyer today carries a report by editor Catrin Griffiths of an edisclosure panel last week hosted by The Lawyer as part of a series of such debates. The panel included Senior Master Whitaker, Phil Beckett of Navigant, and senior representatives of the three main interest groups – a solicitor, a barrister and an in-house lawyer. Unsurprisingly, a panel of this calibre on this subject drew an audience of 70 lawyers.
I will take two points out of what is already a succinct summary of an hour-long discussion. Master Whitaker said this:
“It’s important for a human to review the volumes of data being produced. Predictive coding software doesn’t review documents, it ranks them [by] how it’s been taught to search for them. Nobody can be certain that there won’t be documents left over, but you have to take that risk.
The point bears repeating, and Master Whitaker takes every opportunity to do just that. No one is suggesting that lawyers give disclosure of documents they have not reviewed. The point of predictive coding and other technology aids is to weed out those documents which one might safely assume will not be disclosable in circumstances where, as Phil Beckett put it, the paper equivalent of some electronic sources can be measured in ESBs (heights equivalent to the Empire State Building).
That inevitably raises the question: what does “safely” mean? Geoff Nicholas of Freshfields is quoted as saying:
“It’s a journey. We’ll use predictive coding when we’re sure it works. We looked at that option with a number of providers and we and our clients were not confident it was currently adequate.”
Jonathan Bellamy of 39 Essex Street added this:
“Most decision-making tribunals are wedded to the idea of human judgement and they’ll need persuading that predictive coding works.”
Is this right? I do not believe that many courts or tribunals get involved in the evaluation of software applications – indeed, I would love to have some information, however anecdotal, which suggests that they do. What they ought to do is press the lawyers for information as to the costs, benefits and risks of reasonable alternative ways of tackling the problem and then take a view, if the parties cannot agree, on the most proportionate way forward.
Freshfields and its clients are obviously entitled to conclude that predictive coding is not yet for them. Many other firms have reached the opposite conclusion. It would be interesting to be in a position to compare the cost of the alternative approaches in the cases which they used when they looked at the options – the word “adequate” has meaning only when used in conjunction with “proportionality” which is itself a component of any relevance test. If money is no object and you have large teams of lawyers on hand, your experience is likely to be different from that of the majority of lawyers.
In this context, you may care to read the recent article in the New York Times headed Armies of Expensive Lawyers, Replaced by Cheaper Software which presents a different viewpoint. I do not agree with that either, as my own article King Ludd and the Lawyers -Ediscovery and the Luddite Fallacy suggests.
One might absorb all these opinions – Freshfields’, the NYT writer’s or mine. Alternatively one might simply get on to one or two providers of predictive coding and ask them to show you what these applications can do. You might also read my article The relevance of a computer called ‘Watson’ and a television game show to electronic disclosure for a lay explanation of what is involved here (these references to my own articles do not imply Gospel authority for them; it saves repetition, and points you to other sources which inform my own opinions).
As Master Whitaker said, “Nobody can be certain that there won’t be documents left over, but you have to take that risk”. He is not urging recklessness (far from it), merely an approach which weighs cost against an informed assessment of likely benefit, in the context of rules which require a search which is both reasonable and proportionate. Some will perhaps infer from his words that the technology approach is seen as somehow riskier irrespective of cost. That is not what Master Whitaker said or meant. You weigh the risks of each stage, such as they may be, against the costs and one must respect those whose informed answer, in respect of any particular technology, is “this is not yet for us”. To those who have done no evaluation at all, whether of technology, outsourcing or anything else, if your teams of expensive lawyers produce an outcome which is both cheaper and as accurate as the right technology / outsource answer, I will eat my hat – assuming, that is, that your manual route offers any way of checking what has been done, or any time to do the checking.
I have amended the closing paragraph since first publication. The original struck one reader, at least, as implying that everyone should be using technology generally and one particular class of technology in particular. That was not my purpose. The theme extracted from the many comments about the recent New York Times article is one of skills, including the skill to know what tools and methods are available for use in appropriate cases, and to accept or reject them on an informed basis. I will explore this further in a future article.