tech matters: managing legal and ethical issues at the

OpenText Confidential. ©2019 All Rights Reserved. 1

Tech Matters: Managing Legal and Ethical Issues at the Cutting Edge of eDiscovery

OpenText | Legalweek 2020 | #Legaltech #eDiscovery


A Word From Our Lawyers:The views and opinions expressed in this presentation are those of the speakers and do not necessarily

reflect the views and opinions of their respective employers.

As a courtesy, please refrain from any direct attribution.

SPEAKER INTRODUCTIONS

Judge Andrew Peck (ret.)

DLA Piper

Senior Counsel

David Stanton

Pillsbury Winthrop Shaw Pittman

Partner

Andrea D’Ambra

Norton Rose Fulbright

Partner

Thomas C. Gricks, III

OpenText

Director, Data Analytics

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The Duty of Technology Competence


ABA Model Rule 1.1: Competence

A lawyer shall provide competent representation

to a client. Competent representation requires the

legal knowledge, skill, thoroughness and

preparation reasonably necessary for the

representation.

[8] To maintain the requisite knowledge and skill,

a lawyer should keep abreast of changes in the

law and its practice, including the benefits and

risks associated with relevant technology,

engage in continuing study and education and

comply with all continuing legal education

requirements to which the lawyer is subject.


38 States have adopted the duty of technology competence


The Scope of Technology Competence


To maintain the requisite knowledge and skill, a lawyer should keep

abreast of changes in the law and its practice, including a reasonable

understanding of the benefits and risks associated with technology the

lawyer uses to provide services to clients or to store or transmit

information related to the representation of a client, engage in continuing

study and education and comply with all continuing legal education

requirements to which the lawyer is subject.

-- South Carolina Appellate Court Rules

To maintain the requisite knowledge and skill, a lawyer should engage in

continuing study and education, including the knowledge and skills

regarding existing and developing technology that are reasonably

necessary to provide competent representation for the client in a

particular matter. If a system of peer review has been established, the

lawyer should consider making use of it in appropriate circumstances.

-- Michigan Rules of Professional Conduct

… benefits and risks

associated with relevant

technology


Society will move beyond the abundance of information that defined the Information Age to increasingly

rely on algorithms that sort big data in the “Algorithmic Society.”

As lawyers increasingly rely on algorithms in the everyday practice of law, the legal profession must take

active steps to ensure competent use of algorithms to temper the risks associated with their use. “[I]n

chasing the amazing possibilities, the profession must not forget the fundamentals. In our race to use

technology to be better, faster and cheaper, we must not forget that the law's effect will always [be]

endured by humans . . .. [W]e cannot ignore the danger of a failure of competence.”

[C]ompetent lawyers must continuously monitor their use of a vendor and the corresponding algorithms

to ensure that they use reasonable care when relying on the algorithm's results. We also know that a

lawyer's lack of technological sophistication is no excuse, so the lawyer must at least have a basic

understanding of the pitfalls associated with using algorithms to be able to vet the content.

-- Jamie J. Baker, Beyond the Information Age: The Duty of Technology Competence in the

Algorithmic Society


The Judiciary

Rule 2.5 A judge shall perform judicial and administrative duties,

competently and diligently.

-- ABA Model Code of Judicial Conduct

Are you satisfied with your level of knowledge of e-discovery

technology and practices?• Yes - I require no additional training or education (30%)

• No - I require additional training or education in certain limited areas of

e-discovery technology and practices (63%)

• No - I require extensive training or education on e-discovery technology

and practices (7%)

Should federal judges in general be receiving more training

and education on e-discovery technology or practices?• No. Existing training and education programs are adequate (22%)

• Yes. Modest increases in e-discovery training or education programs

are needed (70%)

• Yes. Extensive increases in e-discovery training or education programs

are needed (8%)

-- Judges Survey 2019, Exterro and EDRM

22%

70%

8%

30%

63%

7%

Yes

No


• Data management

• Information governance

• Data mapping

• Data access

• Retention policies and procedures

• BYOD

• Ephemeral messaging

• Cybersecurity

• Vendor management

• Product (algorithm) evaluation

• Product development

• Contracting

• Review management

• Search term testing

• Statistical testing and analysis

• Reviewer training, accuracy and

disagreement

• Change management

• QC

• Firm management

• Expertise

• Communication/encryption

• Cloud v. on-prem

Topical realm(s)…


Metadata Management


Three types of metadata

1. Application metadata is created as a function of the application

software used to create the document or file.1

• Common application metadata instructs the computer how to display the

document (e.g., the proper fonts, spacing, size, and color). Other application

metadata may reflect modifications to the document, such as prior edits or

editorial comments. This metadata is embedded in the file it describes and

moves with the file when it is moved or copied.

2. System metadata reflects information the user or the organization’s

information management system creates, sometimes automatically.1

• Such information may, for example, track the title of the document, the

identification of the computer that created it, the assigned data owner, and

other document “profile” information, such as file creation and modification

dates. System metadata generally is not embedded within the file it describes,

but is stored externally on the organization’s information management system.

3. Derived metadata is created by e-discovery software to help better

describe and categorize electronic files.2

• An example of derived metadata is the MD5 field for each file, which is

calculated by the software during processing. Other examples of derived

metadata include Custodian, DocID, and ParentID.

1 The Sedona Principles, Third Edition; 2 EDRM Processing Standards Guide, Version 2


Derived metadata and related Custodian dilemmas

Is there any obligation to de-duplicate (e.g., document dump), or to generate

and produce derived metadata in the event you de-duplicate globally?

The current trend is an enterprise approach to data with global de-duping –

that can populate the OtherCustodians field with Custodians not required to be

reviewed – do those ancillary Custodians need to be identified?

In a Custodian-driven review, are you ethically obligated to produce

“responsive” documents for ancillary Custodians (e.g., an anticipatory

Custodian review that ultimately proves unnecessary)?


Search Term Culling Before TAR


FCA US v. Cummins (2017)

Keyword culling NOT permitted

Competing interests

In re Biomet (2013)

Keyword culling PERMITTTED

With ever-increasing data

volumes, hosting is expensive

Culling will almost certainly leave

responsive documents behind


Ethical considerations in culling before TAR

Do you need agreement on search terms?

• See Treppel v. Biovail 233 F.R.D. 363 (S.D.N.Y. 2006) (“Biovail should have proceeded unilaterally,

producing all responsive documents located by its search….”)

Do you need to disclose the subsequent use of TAR?

Do you need to validate the effectiveness of the search term culling, i.e., see

what was missed in the null set?


TAR Validation Practices


The “Broiler Chicken” validation[In Re Broiler Chicken Antitrust Litigation, No. 1:16-cv-08637 (N.D. Ill.) (Docket #586)]

• segregate and sample three document groups

• blind SME review

• extend sample to document groups

• calculate recall

• subject to “novelty” assessment


Breaking down the Broiler Chicken protocol

The intent of this requirement is to ensure that the

review of the Validation Sample is blind…

[A] recall estimate on the order of 70% to 80% is

consistent with, but not the sole indicator of, an

adequate (i.e., high-quality) review.

[T]he final determination also will depend on the

quantity and nature of the documents that were

missed by the review process.


The ethics of validation

Is RECALL the necessary and appropriate validation metric?

Since TAR is text-based, how do we handle non-text validation?

In 2000, Ellen Voorhees told us that reviewers often don’t agree with each

other (or even themselves), so must validation of attorney review be blind?

Is 70%-80% recall presumptively acceptable, or do we need proportionality?

Is a novelty assessment really necessary and, if so, with what criteria?


Q & A


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tech matters: managing legal and ethical issues at the

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