Migrated from eDJGroupInc.com. Author: Mikki Tomlinson. Published: 2012-03-21 07:07:17Format, images and links may no longer function correctly. Buzz about new technologies always precedes adoption. And one of the outcomes of “technology buzz” is development of the market definition to its consumers. The market message and definition of Predictive Coding or Technology Assisted Review (“TAR”) is, without a doubt, still evolving and there is certainly a plethora of buzz.
The simple fact that we, as an industry, cannot agree on a general term for “it” is evidence enough that there are still a lot of untraveled roads that remain to be mapped. “Predictive coding” was the first label that took hold as a result of the marketing efforts of an industry leader. In his February 24, 2012 opinion in the Da Silva Moore, et al. vs. Publicis Groupe, et al. case, The Honorable Andrew J. Peck referred to it as “Computer Assisted Review”. In the yet to be decided Kleen Products, LLC, et al. v. Packaging Corporation of America, et al., case the parties are calling it by a number of terms, including “Computer Based Advanced Analytics, “Software Assisted First Review” and “Supervised Learning.” In a poll recently posted by Barry Murphy “Technology Assisted Review” is holding the current leading position with 60% of the votes. Based on the vote, I will stick to “TAR.”
Based on several conversations I have engaged in over the recent weeks, I feel compelled to call out that we need to engage in a deeper discussion of market activities. There are two points in particular that need to be examined. First, what is the interpretation of the current market message by the general legal community and what is its impact? Second, and as a result of the first, we need to acknowledge the importance of responsible marketing and education.
I was recently asked a question that left me pondering long after it was posed. The question was raised by an industry veteran at this month’s Oklahoma City b-Discovery Meeting. Her home base is located in a market much larger than Oklahoma City, but she covers a large, multi-state region that includes this fine city in which I live. She shared with me that during her day here she engaged with several local legal industry professionals that talked about TAR encouragingly. This is indicative of a trend of acceptance in this seemingly small and behind-the-adoption-curve market as compared to, say for example, New York City, San Francisco or Houston. Her question was “Why is that?”
Frankly, I think this has nothing to do with the geographical market and has everything to do with the messaging to the entire legal industry. There are many facets to a full and complete answer to the question posed. For this post, I will provide commentary on only one: as it is generally explained, TAR makes sense as a viable solution.
TAR is a win-win if the end results are: (1) the lead attorneys understand the story that the electronic evidence tells early in the matter by pushing the documents more likely to be relevant to a higher priority position during review (early case assessment), and (2) the client saves money because the legal team reviews a much smaller amount of documents (removing non-relevant items without review). So, it makes sense – right? And wouldn’t you agree that it is easy to adopt something that makes sense? And if it makes sense, then it seems simple – right?
This is where I throw a caution flag. It does make sense. But it isn’t necessarily that simple. So, why are so many in the legal industry under the impression that it is? Could it be marketing? (See Greg Buckles post for commentary on the “e-discovery made easy” movement.) Don’t get me wrong…I am not knocking the marketing efforts by these technology providers. I am simply attempting to point out its role in industry perception. And it is not just the marketers; it is also the bloggers. Do you know if and by whom the blogs you are reading are sponsored? (See Greg Buckles post Authenticating Your eDiscovery Web Resources.)
For many of us, whether we believe TAR is simple or we don’t, it is a matter of waiting for judicial acknowledgement of it as a viable option for document review in discovery before jumping on the bandwagon. Although currently pending an objection filed by plaintiffs, Judge Peck did so in the Da Silva opinion. What he did not do, however, is order the use of TAR or endorse a particular technology. Is it possible that this industry has so desperately anticipated court opinions on TAR that we have enticed ourselves into overstating, oversimplifying or just plain misrepresenting the implications of this opinion?
It is not my intention to dissect the issues in this or any other case in this blog. I mention it to demonstrate the reality of where we are versus the market perception. Despite the callout of the mistaken headlines after the release of the February 8, 2012, Da Silva hearing transcript (see my previous post here), and despite Judge Peck’s confirmation of the same in his corresponding order (at footnote 1), some are still claiming that TAR has been ordered or that a specific product has been “endorsed” in a case.
Getting back to the two points at the center of this blog: (1) What is the interpretation of the current market message by the general public of the legal community and what is its impact? And, (2) what role is marketing and education playing?
It is clear that there are misinterpretations of how TAR works, and the impact of recent developments on the market. I do believe that irresponsible or careless marketing and blogging – even when supported by good intentions – plays a role. But there is more to it than that. I also believe that there is not enough education and analysis around the different approaches to and types of PC-TAR technologies. And, finally, we, as consumers, need to take responsibility by conducting our own research and/or tapping into trusted resources for information.