Capital One’s First Annual Seminar on E-Discovery: The Future of Search

10 November 2009

Reporting for the Posse List: Scott Madsen

In what portended to be a great day-long seminar on ediscovery search, the opening multimedia presentation by Ralph Losey and Jason R. Baron set the bar high.   This was the “beta version” of a presentation that Losey and Baron will give at LegalTech in New York City this coming February.   It was worth the trip to Tyson’s Corner.

To get a feel for the futuristic presentation Losey choose Darude’s Sandstorm to get his presentation “moving” and used Da Vinci as an inspiration for his template. 

In a nutshell, ediscovery is expanding exponentially.  Losey envisions a future with AI “agents” that can search in real time on the galactic wide web with 98% accuracy, leaving the lawyers to deal with the law.  He also envisions computers that become so smart they create computers that we can’t understand.  Cyberdyne systems anyone?

Losey makes the case that we should be able to quickly find relevant data at reasonable prices.  Keyword searching has proven to narrow the massive quantities of ediscovery but is not perfect, and far from it in many instances.  Losey opines that in many instances lawyers are simply guessing at keywords although collaborative efforts with the litigants (both internal and external) will greatly assist the fluidity and effectiveness of discovery.  Later Losey referred to the Sedona Co-operation Proclamation as one of the best ways to reverse the legal culture of adversarial discovery that is driving up costs and delaying justice.  It will also facilitate proportionality and cooperation in discovery.  But as Losey said “Newton told us that no great discovery was made without a bold guess and it seems like we are waiting for such a bold guess that will assist in the morass that is ediscovery today”.

And Losey repeated his mantra:  how much truth can you afford?  Is a question litigants have to ask themselves in today’s environment as 98% of cases are settled and 60% of the litigation costs are for the processing and review of the data.

The legal profession needs to learn from the mistakes of its past.  It needs to use search pre-processing, and avoid “self-collection” and seek expert help as needed.   And not be adversarial (see above).  Losey says that attorneys that are overly adversarial on ediscovery are usually lacking knowledge in this area and are afraid to give something away.  He also says that attorneys need to “document their processes” and be transparent to the other side … and the judge … and most importantly go to the court early with ediscovery issues which will save you headaches in the end.

All of this, says Losey, is why e-discovery today is like playing the card game Go Fish, an issue he covered brilliantly in a recent post on his blog (click here).  Unless opposing counsel asks specifically in their request for production for a responsive document they are not going to get it.  Too much secrecy and guessing is involved.   The negotiated key word search model prevalent in e-discovery today uses the same guessing game model as Go Fish. The party requesting ESI guesses what key words might produce evidence to support their case. Do you have any emails that use the keyword “King.” It is necessarily a guess as to what keywords to use because the requesting party cannot see the responding party’s cards. Only the responding party sees all of their own cards, and that is as it should be.

The responding party has a right to privacy. They should not be required to give the requesting party the keys to the server room, the whole deck of cards. The requesting party is either suing the responding party, or being sued by the responding party. Either way, the requesting party should not be permitted to enter and search every nook and cranny of their adversary’s inner sanctum. They should not be granted unfettered access to run ever-more-sophisticated search tools to look for something, anything, that might be incriminating. That kind of fishing expedition has long been prohibited by most courts in the United States.

Under a new cooperative based, producer-search-driven discovery (as prposed by Losey and the Sedona Conference)  the trials themselves would also become simpler and more streamlined. If lawyers did not play the old games of truth manipulation, and just let the chips fall where they may, many unnecessary side issues would fade away before trial. When bad facts come out early, pseudo-issues go away early too. This inevitably results in fewer issues remaining for trial. Thus if discovery was changed as here recommended, the cost of trials could also be reduced.

The new goal here proposed for discovery is to find and place all of the important cards on the table as quickly and efficiently as possible. This requires cooperation and transparency on both sides. It requires the requesting party to explain what cards they want and why. It also requires them to make precise and narrow requests directed to specific, important issues in the case.

And this new game also requires cooperation and transparency by the responding party, and requires their initiative and leadership. The responding party can no longer just sit back and watch poor guesses being made. They must take the lead in getting the truth out. This is a burden, but the responding party is more than compensated for this burden by the protection this provides from over-broad, expensive, inefficient search. It also protects the responding party from having to show their whole deck of cards, their entire ESI collection. The protection of privacy rights is an important factor to many.

The party responding to requests for production must be proactive. They must design the search.  As Losey discussed, this only makes sense because it is their data. They have unfettered access to it. They know the language. They know the people involved. For these reasons, the responding party is always in the best position to search the data and, if asked, to fully explain how and why the search met the needs of the requesting party. The process must be transparent. It must also be performed competently. This may sometimes require the employment of experts and search design specialists.

So, says Losey, we need to move to a Where’s Waldo game wherein the requesting party specifically asks for what they want, the responder designs the search using its knowledge of its own data, systems and personnel.   This new game is not a competitive game where one side wins and another loses. Either they both find Waldo or they both lose. The win-lose part of the process comes next. It comes after discovery when the case is decided by summary judgment or tried before a judge and jury. That is the way it should be. Neither discovery nor mediation are adequate substitutes for adjudication.  The new game of discovery here proposed implements strategic cooperation.

Losey and Baron finished with a review of the important processes in ediscovery: culling, then filtering, then sampling, then stages.  Sampling is your friend.  Proportionality and estimates get a feel for what it costs and a projection from a sample can estimate the total cost of the project.

The end result of winning at co-operative ediscovery is that you have time and money left to fight the case on its merits.  You could say that Losey follows the win-win strategy and is of the opinion that ediscovery is not a zero sum game, but that it should be the precursor to the real battle on the merits of the case.