Last year the blogosphere was alive with commentary over a New York Times report, Armies of Expensive Lawyers, Replaced by Cheaper Software (March 4, 2011). Now nearly a year later, it seems that some predictions for the demise of human reviewers were perhaps over-stated, as reported recently in Law Technology News, Human Element Critical to Computer-Aided E-Discovery (January 23, 2012).

This shift in the dialog reminds me of an earlier wave of hype in which the role of ECA as a technology was once over-emphasized, despite the fact that early case assessment had long been and still is an important litigation process. (Recall George Socha and Tom Gelbmans’ “silver bullet” warning about ECA in their 2009 report.) I believe there is a parallel to be found in some of the media hype about “predictive coding” and its role in the document review process.

But as Judge Peck reminds us (Search, Forward, Law Technology News, Oct. 1, 2011), it is the “methodology” for discovery that is most critical. I have no doubt that technology-assisted review will result in greater workflow efficiencies, but human expertise will still be needed to make effective use of the technology. It takes people to train and validate that the coding process is achieving the desired levels of accuracy. Even then, someone needs to lay eyes on documents in order to be sure that privilege documents are set aside properly and that only responsive documents will be produced. No one is simply going to trust hitting the proverbial “Produce” button and then go off to court. Though perfection may not be required by the courts, ultimately the discovery process must be supervised by a practicing lawyer who will be responsible for ensuring it is conducted in a reasonably defensible manner.

Efficiency is also important, but legal teams should address this (along with defensibility; particularly obligations for timely preservation) by focusing more attention on establishing the appropriate discovery processes and response teams. Technology has a role, but not at the expense of human expertise and a sound process. (See my Best Practices in Discovery Planning white paper series which goes into greater depth on this subject: Part 1: Establishing Discovery as a Business Process; Part 2: Building a Discovery Response Team.)

Where technology-assisted review does make sense to use, I believe it can serve as a powerful tool for both reducing cost and improving the quality of the discovery and document review processes. I participated in numerous meetings at LegalTech in which we discussed the benefits of Integreon’s own offering for technology-assisted review, i.e. we announced eView 4.0 with Adaptive Coding at LegalTech.

We use the term “adaptive coding” to reflect our viewpoint that technology-assisted review involves an iterative process of training and validation in which automated coding is systematically adapted to the characteristics of the given set of documents subject to discovery as well as other case or client specific requirements. The following is a video interview I gave to LXBN TV during LegalTech in which I explain more about our approach in applying Adaptive Coding.

Interview on LXBN TV at LegalTech New York 2012

Update 02/14/2012

As reported today in Law Technology News (Judge Peck Orders Predictive Coding in Federal Case), Magistrate Judge Andrew J. Peck has ordered the use of automated coding in a case now before the U.S. District Court for the Southern District of New York. I will be following the case with great interest, as it appears to be the first federal case mandating the use of this technology for document review. The outcome of the case will likely have significant implications for how this type of technology can be defensibly applied during the discovery process.

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