By: Andrew Bartholomew
Last week, we posted Part 1 of my interview with e-discovery expert Ralph Losey. In the second half of our conversation, Losey addressed potential e-discovery rule changes, the advent of computer-assisted review and the emerging role of information science in e-discovery. Following is a recap of our conversation (click the audio link below to listen to the full interview):
Bartholomew: Do you feel that some of the issues in e-discovery should be addressed via rule changes or are there better solutions out there?
Losey: I am not opposed to tweaking the rules. Rule changing is difficult; it’s frustrating. I’ve been involved in the Florida rule changes since 2007, and we still don’t have rules in place, but they’re likely to come soon. It’s the same thing at the federal level. It’s a five to seven year process, and they’re going through the motions now. Many lawyers are very concerned with preservation and perhaps clarifying sanctions, but it’s not going to happen immediately. I think for immediate benefits what people need to do is to understand better the existing rules. There are a lot of rules that are not being followed. People don’t seem to understand that proportionality is not just something that The Sedona Conference invented; it’s not just something that Ralph Losey is out promoting. This is built into the rules going back 40 years. So, there are a lot of things that you can do just by invoking the rules that we already have and using them in a learned and knowledgeable fashion. It’s a lack of training and education, which is a core problem behind the issues we have in e-discovery. There are not enough skilled practitioners in this area. We really need to train more people and train them fast, and that will help us more than rule changes. But I’m not averse to trying every possible solution.
Bartholomew: How does the advent of computer-assisted review, or predictive coding, stand to impact the role of human review in e-discovery going forward?
Losey: The need for human input is never going to go away. Predictive coding does not replace human reviewers. Having said that, it may reduce the number of human reviewers but so will proportional discovery. If you use predictive coding as a tool but you don’t use it with a legal method, it’s worthless. A hammer doesn’t build a house. It takes a carpenter to use the hammer to build the house. Predictive coding is just the latest, coolest tool, but it doesn’t replace the carpenter. It doesn’t replace all the other tools either. I’m the one that said keyword search is very limited, but the truth is, you still need keyword search. It’s still a very valuable and important tool. It’s just not the best tool. But it still needs to be used and so do the human reviewers. The other slogan I’m talking about right now is called hybrid, multi-modal computer-assisted review. This is what it’s all about. It’s having computers tell us to do a faster, better, higher quality, yet less expensive, review. It allows us to basically get more bang for our buck. If you’re on a budget, you better be delivering the relevant documents within that budget. The best way to do that is with the latest tools; predictive coding is the latest tool. But it’s just a drop down menu on any good software review tool, along with concept review, the similarity feature where you’re grouping words using near de-duplication, as well as keyword search. The foundation to all of these techniques is expert human review. The human input has become even more important with predictive coding because now you need to bring in experts in the beginning. You need to bring in the people who really know what’s relevant and what isn’t in order to train the computer and generate the seed set. If anything, the latest predictive coding technologies have elevated the importance of the expert lawyer.
Bartholomew: Are there other issues or trends that we might be hearing about from you on your blogs or future presentations?
Losey: I’m going to continue to talk a lot about predictive coding and using technology because I really believe that the only way to get out of the mess we’re in of having too much information – a problem created by technology – is to use more technology. We have to fight fire with fire. I’m going to keep encouraging the law to use technology and the knowledge and intelligence we have in computers in order to do e-discovery – not only in an inexpensive way but also in a quality way where you get the information you need. The new trend I’ve been talking about is the growing importance of information science on the law. It’s one thing to have technology impact the law, but you must balance out the technology with the deep knowledge and real understanding that you can really only get from science. That’s the only way law is going to be able to use technology in an appropriate manner.
This interview was recorded as part of Exterro’s e-discovery podcast series. You can access it and other interviews with e-discovery experts here