Monthly Archives: June 2019

Highlights from IG3 Mid-Atlantic 2019

The first Mid-Atlantic IG3 was held at the Watergate Hotel in Washington, D.C.. It was a day and a half long with a keynote followed by two concurrent sets of sessions.  I’ve provided some notes below from the sessions I was able to attend.  You can find my full set of photos here.ig3east2019_hotel

Big Foot, Aliens, or a Culture of Governance: Are Any of Them Real?
In 2012 12% of companies had a chief data officer, but now 63.4% do.  Better data management can give insight into the business.  It may also be possible to monetize the data.  Cigna has used Watson, but you do have to put work into teaching it.  Remember the days before GPS, when you had to keep driving directions in your head or use printed maps.  Data is now more available.

Practical Applications of AI and Analytics: Gain Insights to Augment Your Review or End It Early
Opposing counsel may not even agree to threading, so getting approval for AI can be a problem.  If the requesting party is the government, they want everything and they don’t care about the cost to you.  TAR 2.0 allows you to jump into review right away with no delay for training by an expert, and it is becoming much more common.  TAR 1.0 is still used for second requests [presumably to produce documents without review].  With TAR 1.0 you know how much review you’ll have to do if you are going to review the docs that will potentially be produced, whereas you don’t with TAR 2.0 [though you could get a rough estimate with additional sampling].  Employees may utilize code words, and some people such as traders use unique lingo — will this cause problems for TAR?  It is useful to use unsupervised learning (clustering) to identify issues and keywords.  Negotiation over TAR use can sometimes be more work than doing the review without TAR.  It is hard to know the size of the benefit that TAR will provide for a project in advance, which can make it hard to convince people to use it.  Do you have to disclose the use of TAR to the other side?  If you are using it to cull, rather than just to prioritize the review, probably.  Courts will soon require or encourage the use of TAR.  There is a proportionality argument that it is unreasonable to not use it.  Data volumes are skyrocketing.  90% of the data in the world was created in the last 2 years.ig3east2019_talk

Is There Room for Governance in Digital Transformation?
I wasn’t able to attend this one.

Investigative Analytics and Machine Learning; The Right Mindset, Tools, and Approach can Make all the Difference
You can use e-discovery AI tools to get the investigation going.  Some people still use paper, and the meta data from the label on the box containing the documents may be all you have.  While keyword search may not be very effective, the query may be a starting point for communicating what the person is looking for so you can figure out how to find it.  Use clustering to look for outliers.  Pushing people to use tech just makes them hate you.  Teach them in a way that is relatable.  Listen to the people that are trying to learn and see what they need.  Admit that tech doesn’t always work.  Don’t start filtering the data down too early — you need to understand it first.  It is important to be able to predict things such as cost.  Figure out which people to look at first (tiering).  Convince people to try analytics by pointing out how it can save time so they can spend more time with their kids.  Tech vendors need to be honest about what their products can do (users need to be skeptical).

CCPA and New US Privacy Laws Readiness
I wasn’t able to attend this one.

Ick, Math! Ensuring Production Quality
I moderated this panel, so I didn’t take notes.

Effective Data Mapping Policies and Avoiding Pitfalls in GDPR and Data Transfers for Cross-Border Litigations and Investigations
I wasn’t able to attend this one.

Technology Solution Update From Corporate, Law Firm and Service Provider Perspective
I wasn’t able to attend this one.

Selecting eDiscovery Platforms and Vendors
People often pick services offered by their friends rather than doing an unbiased analysis.  Often do an RFI, then RFP, then POC to see what you really get out of the system.  Does the vendor have experience in your industry?  What is billable vs non-billable?  Are you paying for peer QC?  What does data in/out mean for billing?  Do a test run with the vendor before making any decisions for the long term.  Some vendors charge by the user, instead of, or in addition to, charging based on data volume.  What does “unlimited” really mean?  Government agencies tend to demand a particular way of pricing, and projects are usually 3-5 years.  Charging a lot for a large number of users working on a small database really annoys the customer.  Per-user fees are really a Relativity thing, and other platforms should not attempt it.  Firms will bring data in house to avoid user fees unless the data is too big (e.g., 10GB).  How do dupes impact billing?  Are they charging to extract a dupe?  Concurrent user licenses were annoying, so many moved to named user licenses (typically 4 or 5 to one).  Concurrent licenses may have a burst option to address surges in usage, perhaps setting to the new level.  Some people use TAR on all cases while others in the firm/company never use it, so keep that in mind when licensing it.  Forcing people to use an unfamiliar platform to save money can be a mistake since there may be a lot of effort required to learn it.

eDiscovery Support and Pricing Model — Do we have it all Wrong?
Various pricing models: data in/out + hosting + reviewers, based on number of custodians, or bulk rate (flat monthly fee).  Redaction, foreign language, and privilege logs used to be separate charges, but there is now pressure to include them in the base fee.  Some make processing free but compensate by raising the rate for review.  RFP / procurement is a terrible approach for ediscovery because you work with and need to like the vendor/team.  Ask others about their experience with the vendor, though there is now less variability in quality between the vendors.  Encourage the vendor to make suggestions and not just be an order-taker.  Law firms often blame the vendor when a privileged document is produced, and the lack of transparency about what really happened is frustrating.  The client needs good communication with both the law firm and the vendor.  Law firms shouldn’t offer ediscovery services unless they can do it as well as the vendors (law firms have a fiduciary duty).  ig3east2019_memorial

Still Looking for the Data
I wasn’t able to attend this one.

Recycling Your eDiscovery Data: How Managing Data Across Your Portfolio can Help to Reduce Wasteful Spending
I wasn’t able to attend this one.

Ready, Fire, Aim!  Negotiating Discovery Protocols
The Mandatory Initial Discovery Pilot Program in the Northern District of Illinois and Arizona requires production within 70 days from filing in order to motivate both sides to get going and cooperate.  One complaint about this is that people want a motion to dismiss to be heard before getting into ediscovery.  Can’t get away with saying “give us everything” under the pilot program since there is not enough time for that to be possible.  Nobody wants to be the unreasonable party under such a tight deadline.  The Commercial Division of the NY Supreme Court encourages categorical privilege logs.  You describe the category, say why it is privileged, and specify how many documents were redacted vs being withheld in their entirety.  Make a list of third parties that received the privileged documents (not a full list of all from/to).  It can be a pain to come up with a set of categories when there is a huge number of documents.  When it comes to TAR protocols, one might disclose the tool used or whether only the inclusive email was produced.  Should the seed set size or elusion set size be disclosed?  Why is the producing party disclosing any of this instead of just claiming that their only responsibility is to produce the documents?  Disclosing may reduce the risk of having a fight over sufficiency.  Government regulators will just tell you to give them everything exactly the way they want it.  When responding to a criminal antitrust investigation you can get in trouble if you standardize the timezone in the data.  Don’t do threading without consent.  A second request may require you to provide a list of all keywords in the collection and their frequencies.  Be careful about orders requiring you to produce the full family — this will compel you to produce non-responsive attachments.

Document Review Pricing Reset
A common approach is hourly pricing for everything (except hosting).  This may be attractive to the customer because other approaches require the vendor to take on risk that the labor will be more than expected and they will build that into the price.  If the customer doesn’t need predictable cost, they won’t want to pay (implicitly) for insurance against a cost overrun.  It is a choice between predictability of cost and lowest cost.  Occasionally review is priced on a per-document basis, but it is hard to estimate what the fair price is since data can vary.  Per-document pricing puts some pressure on the review team to better manage the process for efficiency.  Some clients are asking for a fixed price to handle everything for the next three years. ig3east2019_reflecting_pool A hybrid model has a fixed monthly fee with a lower hourly rate for review, with the lower hourly review making paying for extra QC review less painful.  Using separate vendors and review companies can have a downside if reviewers sit idle while the tech is not ready.  On the other hand, if there are problems with the reviewers it is nice to have the option to swap them out for another review team.

Finding Common Ground: Legal & IT Working Together
I wasn’t able to attend this one.