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:
- spending more money on document review does not correlate with greater quality;
- senior lawyers know what they are doing; and
- 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.