Technology Assisted Review: Trick or Treat? Ralph Losey, Esq., Jackson Lewis 1

Ralph Losey, Esq. 2  Partner, National e-Discovery Counsel, Jackson Lewis  Adjunct Professor of Law, University of Florida  Active member, The Sedona Conference  Author of numerous books and law review articles on e-discovery  Founder, Electronic Discovery Best Practices (EDBP.com)  Lawyer, writer, predictive coding search designer, and trainer behind the e-Discovery Team blog (e- discoveryteam.com)  Co-founder with son, Adam Losey, of IT-Lex.org, a non-profit educational for law students and young lawyers

Discussion Overview 3  What is Technology Assisted Review (TAR) aka Computer Assisted Review (CAR)?  Document Evaluation  Putting TAR into Practice  Conclusion

What is Technology Assisted Review? 4

Why Discuss Alternative Document Review Solutions? Document review is routinely the most expensive part of the discovery process. Saving time and reducing costs will result in satisfied clients. Traditional/Linear Paper-Based Document Review Online Review Technology Assisted Review 5

Information retrieval effectiveness can be evaluated with metrics Fraction of relevant documents within retrieved results – a measure of exactness Precision Fraction of retrieved relevant documents within the total relevant documents – a measure of completeness Harmonic mean of precision and recall Recall F-Measure Hot Not All documents Bobbing for Apples: Defining an effective search

Information retrieval effectiveness can be evaluated with metrics Fraction of relevant documents within retrieved results – a measure of exactness Precision Fraction of retrieved relevant documents within the total relevant documents – a measure of completeness Harmonic mean of precision and recall Recall F-Measure 1) Perfect Recall; Low precision Bobbing for Apples: Defining an effective search Hot Not

Information retrieval effectiveness can be evaluated with metrics Fraction of relevant documents within retrieved results – a measure of exactness Precision Fraction of retrieved relevant documents within the total relevant documents – a measure of completeness Harmonic mean of precision and recall Recall F-Measure 2) Low Recall; Perfect Precision Bobbing for Apples: Defining an effective search Hot Not

Information retrieval effectiveness can be evaluated with metrics Fraction of relevant documents within retrieved results – a measure of exactness Precision Fraction of retrieved relevant documents within the total relevant documents – a measure of completeness Harmonic mean of precision and recall Recall F-Measure 3) Arguably Good Recall and Precision Bobbing for Apples: Defining an effective search Hot Not

Key Word Search  Key word searches are used throughout discovery  However, they are not particularly effective »Blair and Maron - Lawyers believed their manual search retrieved 75% of relevant documents, when only 20% were retrieved  It is very difficult to craft a key word search that isn’t under-inclusive or over-inclusive  Key word search should be viewed as a component of a hybrid multimodal search strategy Go fish! 10

Where are we?

What Is Technology Assisted Review (TAR) ? 12

13 Classification Effectiveness  Any binary classification can be summarized in a 2x2 table  Test on sample of n documents for which we know answer »A + B+ D + E = n

14 Classification Effectiveness  Recall = A / (A+D) »Proportion of interesting stuff that the classifier actually found  High recall of interest to both producing and receiving party

15 Classification Effectiveness  Precision = A / (A+B)  High precision of particular interest to producing party: cost reduction!

How precise were you in culling out from your bag of 10,000 and ? 16 Sampling and Quality Control  Want to know effectiveness without manually reviewing everything. So: »Randomly sample the documents »Manually classify the sample »Estimate effectiveness on full set based on sample  Sampling is well-understood »Common in expert testimony in range of disciplines Sample size = 370 (Confidence Interval: 5; Confidence Level: 95%) Precision: 81%

 Annual event examining document review methods 17 TREC 2011 [T]he results show that the technology-assisted review efforts of several participants achieve recall scores that are about as high as might reasonably be measured using current evaluation methodologies. These efforts require human review of only a fraction of the entire collection, with the consequence that they are far more cost- effective than manual review. -Overview of the TREC 2011 Legal Track

18 Putting TAR into Practice

TAR or CAR? A Multimodal Process Must… have… humans! 19

The Judiciary’s Stance  Da Silva Moore v. Publicis Groupe »Court okayed parties’ agreement to use TAR; parties disputed implementation protocol (3.3 million documents)  Kleen Products v. Packaging Corp. of Am. »Plaintiffs abandoned arguments in favor of TAR and moved forward with Boolean search  Global Aerospace Inc. v. Landow Aviation, L.P. »Court blessed defendant’s use of TAR over plaintiff’s objections (2 million documents)  In re Actos (Pioglitazone) Products Liability Litigation »Court affirmatively approved the use of TAR for review and production  EORHB, Inc., et al v. HOA Holdings, LLC »Court orders parties to use TAR and share common ediscovery provider

 Must address risks associated with seed set disclosure  Must have nuanced expert judgment of experienced attorneys  Must have validation and QC steps to ensure accuracy 21 TAR/CAR: TricksTreats  TAR can reduce time spent on review and administration  TAR can reduce number of documents reviewed, depending on the solution and strategy  TAR can increase accuracy and consistency of category decisions (vs. unaided human review)  TAR can identify the most important documents more quickly &

TAR Accuracy TAR must be as accurate as a traditional review Studies show that computer-aided review is as effective as a manual review (if not more so) Remember: Court standard is reasonableness, not perfection: “[T]he idea is not to make it perfect, it’s not going to be perfect. The idea is to make it significantly better than the alternative without as much cost.” -U.S. Magistrate Judge Andrew Peck in Da Silva Moore 22

23 Conclusion

24 Parting Thoughts  Automated review technology helps lawyers focus on resolution – not discovery – through available metrics »Complements human review, but will not replace the need for skillful human analysis and advocacy  Search adequacy is defined in terms of reasonableness, not whether all relevant documents were found  TAR can be a treat, but only when implemented correctly »Reconsider, but do not abandon, the role of: »Concept search »Keyword search »Attorney review

25 Q & A

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