Why New Predictive Coding Technology Could be
Good (or Bad) for Your Career

 

 

By Matt Nelson, Esq. and Dean Gonsowski, Esq.

 

 

     The buzz surrounding predictive coding technology is palpable for those in the legal industry.  Although recent case law decisions addressing the use of predictive coding technology in discovery may add more confusion than clarity, the technology still holds tremendous promise.  With promise comes opportunity for those who take the time to
learn a complex new approach to electronically stored information (ESI) document review.  On the other hand, those who fail to stay abreast of new technological developments run
the risk of gradually becoming obsolete. 
If past history is a good indicator of what the future could hold for litigation support professionals, then it makes sense to revisit another important litigation trend for guidance. 

    
More than a decade ago, many in the legal field recognized a fundamental trend developing even before eDiscovery became mainstream.  A gradual shift away from using paper (hardcopy documents) for managing discovery occurred in favor of converting those same documents into electronic images.  The trend developed because converting paper documents to searchable image files with scanning and optical character recognition (OCR) software was simply far more cost efficient and manageable than dealing with paper.
 

     For example, instead of paying vendors thousands of dollars to make photocopies of every document produced during discovery, that same vendor could be paid to create a searchable image of those same documents.  The cost savings came when a party faced with responding to a large discovery request could respond by simply sending the requesting party a hard drive full of electronic images rather than a truckload of bankers boxes filled with photocopies of original documents.  Perhaps even more important was the time and money saved on traditional document review.  Instead of paying legal staff to rummage through thousands of paper files for days or weeks to find responsive documents, basic litigation support software tools could be used to find the same responsive documents in seconds by using keyword searches.

     Although the shift from paper to electronic imaging, OCR, and litigation support software paled in comparison to the overall Silicon Valley tech boom of the late 1990’s, it was still significant to the legal industry.  It was significant because it represented a new approach to discovery and was the precursor to the billion dollar eDiscovery software market that exists today.  Attorneys and support staff who recognized this shift early on were able to advance their careers by learning a new process.  For example, many paralegals tired of the drudgery of manual document review became experts in litigation support software.  By honing their technical expertise they became more valuable to the organization because they enabled their legal teams to find critical documents faster, streamline document productions, and save client’s money.  On the other hand, those who failed to adapt to the trend from paper to electronic images were largely left behind. 

     Many of these early technology adopters doubled down on the expertise they gained during the paper to electronic file conversion years by also adapting to the next trend - - electronic discovery.  The early adopters were able to further advance their careers by becoming the eDiscovery experts for their organizations and fittingly, new titles and pay raises often followed.  Although eDiscovery continues to be a hot topic, it can hardly be considered a new trend any longer.  The legal market is saturated with thousands of attorneys and paralegals that have been forced to become proficient in eDiscovery issues or risk becoming irrelevant.  Given this saturation, savvy legal professionals should recognize that it might be time to capitalize on the next trend in order to stand out from peers and reap the rewards of being ahead of the curve.
 

     The current trend that presents the most opportunity for many legal professionals is predictive coding technology.  Predictive coding is a type of machine learning technology that enables a computer to automatically predict how documents should be classified based on limited human input.  The technology is exciting for legal departments attempting to manage skyrocketing litigation budgets because the ability to automatically rank and then “code” or “tag” electronic documents based on criteria such as “relevance” and “privilege” has the potential to save companies millions in eDiscovery costs.  The savings are directly attributable to the fact that fewer dollars are spent paying legal staff to review every document before documents are produced to outside parties during discovery.  
 

     The challenge surrounding predictive coding technology is that first generation technologies are complex and difficult to use.  There are also multiple software companies offering their own flavor of predictive coding technology, which makes choosing (and deploying) the right technology difficult.  On the other hand, the potential cost savings related to using predictive coding technology are so great, that corporate legal departments will inevitably expect the law firms that represent them to learn how to use the technology regardless of the complexity.  Much like the trend from paper to electronic file conversion was driven by the potential for cost savings, so too is the buzz surrounding predictive coding technology.  The question becomes, how can one capitalize on the latest predictive coding trend to advance personal career objectives? 

     The simple answer is to become an indispensable part of your organization by becoming the resident predictive coding expert.  Although the task might seem daunting, the complexity surrounding early predictive coding tools has created an opportunity to learn a new approach that many of your colleagues may foolishly pass up.  That means the area is still ripe with opportunity and the good news is that becoming your organizations go-to person for predictive coding does not necessarily require you to obtain an advanced degree in statistics or computer science.  A much simpler approach to obtaining predictive coding guru status can be obtained by following these three easy steps. 

Step 1 – Read Up on the Topic 

     There is a tremendous amount of free information available on the internet that covering everything from predictive coding 101 to recent case law decisions.  Reading articles from trusted sources will help you understand predictive coding at a high level, as well as both the pros and cons of first generation technology and the future of next generation predictive coding technology.  Here is a quick reading list to help you get started:

  • •·         “Search, Forward: Will manual document review and keyword searches be replaced by computer assisted-coding?” by Judge Andrew Peck http://bit.ly/qGwIRh
  • •·         “2012: Year of the Dragon - and Predictive Coding? Will the eDiscovery Landscape Be Forever Changed?” by Matthew Nelson http://bit.ly/zwwi03
  • •·         “Technology-Assisted Review in Electronic Discovery Can Be More Efficient And More Cost Effective Than Exhaustive Manual Review” by Maura R. Grossman & Gordon V. Cormack  http://jolt.richmond.edu/v17i3/article11.pdf
  • •·         “First State Court Issues Order Approving the Use of Predictive Coding” by Matthew Nelson
  • http://bit.ly/IsgrtT

 

Step 2 – Speak With Trusted Advisors

 

     The predictive coding software market is flooded with more and more companies claiming to provide predictive coding solutions.  The challenge with any burgeoning market is to separate the players from the posers.  That task isn’t always easy considering many companies have their sales pitches perfected before their products are ready for prime time.  The good news is that independent industry analysts like Gartner prepare several reports annually that evaluate eDiscovery market trends and players so you won’t be required to start from scratch. 

 

     These reports consider factors like revenue, breadth of product offerings, product integration, and customer loyalty to evaluate and rank the top eDiscovery software providers.  Gartner’s annual “Magic Quadrant for E-Discovery Software report is a good starting point for understanding current eDiscovery trends like predictive coding, as well as the major players in the broader eDiscovery and Information Governance arena.  Reach out to some of the highest ranked companies in your quest to learn more about predictive coding generally, as well as each company’s particular offering.  Similarly, make sure to follow up with some of your peers in the industry to find out if they are willing to share any of their experiences with these same companies.

 

Step 3 –Test Drive the Software  

     Many believe a picture is worth a thousand words.  That is why the next step in your quest for more information about predictive coding technology should include watching live product demonstrations.  Come prepared to ask questions during these meetings to both increase your general knowledge about predictive coding, as well as to begin vetting competing solutions.  Specific things to look for in any predictive coding product include transparency and ease of use for end users, recommended workflow, chain of custody reporting, and broader integration with other important eDiscovery modules.  If product demonstrations don’t live up to their hype and you leave the demonstration with more questions than answers, then you will instinctively begin realizing who to include in future discussions and who to leave behind.       

     Finally, be wary of eDiscovery providers suggesting that predictive coding technology tools will replace all other eDiscovery technology.  The objective for most organizations is to standardize on a comprehensive eDiscovery platform rather than investing in point solutions that merely address individualized problems.  Providers belittling the broader eDiscovery and information governance picture probably don’t offer much beyond predictive coding technology so they may try to focus the conversation exclusively on document review and analysis.  Other steps in the eDiscovery process that must be accounted for in addition to document review include proactively establishing an internal records retention schedule, legal hold notification, data identification and collection, early case assessment, and data filtering.  Organizations with an eye toward the future realize that it is far more efficient, economical, and defensible to invest in a single integrated platform capable of managing all of these steps instead of investing in point solutions that only address part of the problem. 

Conclusion 

 

     Genuinely new legal technology trends don’t come around often so recognizing those trends when they arise is important.  Predictive coding technology is a new trend that is likely to explode once next generation predictive coding technology become more transparent, easier to use, and more defensible.  Savvy legal professional interested advancing their careers and being on the cutting edge of something new, will invest time in understanding the future of predictive coding in order to advance their careers and help the organizations the support.

               

Matthew Nelson is e-discovery counsel at Symantec and a legal technology expert with more than a decade of experience helping organizations address electronic discovery, regulatory compliance, and other information governance related challenges. He is a member of the Sedona Electronic Document Retention and Production Working Group, the Electronic Discovery Reference Model, and the California and Idaho State Bars. He can be reached at matt_nelson@symantec.com or followed on Twitter @InfoGovlawyer.

 

Dean Gonsowski brings over fifteen years of eDiscovery consulting and legal practice experience to his position as Senior eDiscovery Counsel for Symantec http://www.symantec.com/. He is a member of The Sedona Conference Working Group on Electronic Document Retention and Production (WG1), the Electronic Discovery Reference Model (EDRM) and Association of Corporate Counsel (ACC).  He has been quoted in a number of leading publications, including the Financial Times, Forbes and MSNBC.  You can follow Dean on Twitter (@dean_gonsowski).

 

 

 

 

 

 

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