The December 1, 2015 amendments to the Federal Rules of Civil Procedure and robust new technology have ushered in a new age for attorneys to benefit from artificial intelligence in the ediscovery practice.
In summary, the process includes conducting a macro review to determine which documents can be safely culled and/or mass tagged as nonresponsive to winnow down the potential set of responsive documents, randomly sampling that set to obtain a prevalence estimate of particular tags and quality control (QC), performing the review using a combination of DISCO AI and more traditional keyword searching, followed by a final sampling to ensure the results are acceptable.
Is it e-discovery, E-discovery, eDiscovery, or ediscovery? While some may say the derivation of a word should dictate it’s spelling, others argue that communication has become a fashion; the method, spelling, and even the meaning of language should change to match the current social and cultural climate.
If you were born before 1985, it’s likely that you immediately get the reference to Festivus, the anti-commercial holiday “for the rest of us”, that was invented by George Costanza’s father and celebrated on Seinfeld. Of course, Festivus wouldn’t be complete without an unadorned aluminum Festivus pole, a dinner where the guests engage in the "Airing of Grievances" and recognition of "Feats of Strength" as well as proclaiming easily explainable events as "Festivus miracles".
In my previous post, I identified the principal reasons I believe Predictive Coding or Technology Assisted Review (“TAR”) has not yet caught on in mainstream litigation. Let me summarize very briefly: complexity, opacity, and cost. That is, most TAR systems are difficult to set up, difficult to use, difficult to understand, and usually expensive.
My military background gave me a true appreciation for technology as a force multiplier. If my wingman and I use our two modern aircraft with superior targeting technology to demobilize ten enemy aircraft at once, we have provided the same impact as ten less capable aircraft — two modern aircraft become ten. Great litigation technology can also be a true force multiplier that allows legal teams to be more cost-effective and efficiently manage large amounts of potentially relevant data over the course of any given case.
At the end of litigation, unless the parties have settled and agreed that each party will bear its own costs, the prevailing party may want to seek recovery for its expenses (apart from attorney fees, which is a much broader topic and not within the scope of this piece), such as court reporter fees, document duplication, ediscovery processing and database fees, etc. Typically, ediscovery costs for collection, processing, review, and production of electronically stored information (ESI) are the largest cost component of litigation expense, so it is natural that the prevailing party desires to recover as much of this as it can from the losing party. This piece focuses on recovery of ediscovery expenses under the applicable federal statute and corresponding case law, but your results may vary depending on the laws of the jurisdiction you find yourself in.
DISCO creates cutting-edge software for the legal industry, which means that most of my blog posts end up discussing the finer points of software's role in ediscovery. However, as DISCO was founded by lawyers, and many of us at DISCO are still lawyers first and foremost, it seems appropriate to talk about a topic currently trending near the top of the public’s perception of the legal world: an evenly split Supreme Court.