I am not being replaced with a robot! Well, not yet.
In the E-Discovery world, a debate has raged over the past
couple of years as to whether technology-assisted review has
developed to the point where lawyers are simply no longer needed to
review documents for relevance and privilege in major litigation
and regulatory investigations. A respected research project has
recently lent support for the argument that lawyers are very much
needed for optimal results.
A joint research project, which began in 2012, by Oracle Corp.
and the non-profit Electronic Discovery Institute has completed its
first phase and has made three key conclusions:
1. spending more money on document review does not correlate
with greater quality;
2. senior lawyers know what they are doing; and
3. humans are the most vital component of the E-Discovery
project, no matter what technology is being used.
The study considered multiple evaluation systems using
litigation data from real high-stakes litigation – a 2007
Department of Justice matter involving government pricing practices
at Sun Microsystems. Oracle completed an acquisition of Sun
Microsystems in 2010, inheriting the litigation. When Oracle
settled the underlying litigation in 2011, it had completed its
document review of Sun documents and was confident that it
conducted a meticulous lawyer-based document review to respond to
the document request. The Oracle legal team agreed to allow the
data to be used for the study.
Participants received a collection of 1,693,243 documents and
review materials, including the complaint (Statement of Claim in
Canadian litigation parlance), custodian list, glossary, privilege
memorandum, inside and outside lawyer name list, confidentiality
memorandum, tagging rules memorandum, issue tag flowcharts, issue
tag definitions, case updates/announcements, specific document
request review rules, an acronym list, and a combined time line.
Participants submitted interrogatories to an associate who had
managed the document review in the original matter.
Performance was measured by comparing the study
participants' results with the actual document review that had
taken place and ranking the study participants in terms of cost and
how well their review identified for responsiveness, privilege and
"hotness" (ie. key documents).
Patrick Oot (Senior Special Counsel for Electronic Discovery in
the Office of the General Counsel for the United States Securities
and Exchange Commission), one of the study's leaders, concluded
that software is only as good as its operators and spending more
money does not correlate with greater quality.
I have maintained for years that an optimal and cost-effective
E-Discovery process comes from the combination of an effective
review tool and the leadership of an experienced senior lawyer.
Needless to say, I am pleased (vindicated? at least for the time
being?) by these preliminary results.
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