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Computer Assisted Review

The eDiscovery Killer App of the Decade

Copyright © 2011 Autonomy Corp. All rights reserved.

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Managing the ESI Offensive: Computer Assisted Review

•  The volume of data that must be managed for information governance and eDiscovery exponentially.

–  Manual ESI review is slow and costly •  Estimates of $20-30K per gigabyte of data •  Traditional review speeds of 50-100 documents per hour

•  Computer assisted review can reduce risk, costs and time. Advanced computing technology can be used for:

–  Early Case Assessment –  Data sampling –  Coding decisions

•  Benefits of computer assisted review: –  Improved accuracy –  Improved speed of review –  Reduced time and cost

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Recall vs. Relevance

Recall = Number of responsive documents retrieved Number of responsive documents overall

Precision = Number of responsive documents retrieved Number of documents retrieved

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Advantages of Computer Assisted Review

•  Human reviewers and computer assisted review have been discussed, tested and compared:

–  American Society for Information Science and Technology humans vs. computers

–  TREC (Text Retrieval Conference) has tested eDiscovery solutions

–  New York Times article “Armies of Expensive Lawyers, Replaced by Cheaper Software”

•  Technology is available that allows computers to “review” the data:

–  Advanced systems watch and learn how ESI is coded / tagged, allowing them to predict the coding decision

–  Systems can extract and understand meaning from the data

–  Speed and accuracy of review is improved through auto-coding

“…reliance solely on a manual process for the purposes of finding responsive documents may be infeasible or unwarranted. In such cases , the use of automated search methods should be viewed as reasonable, valuable, and even necessary.” — Sedona Conference: Best Practices for Search and Information Retrieval (2007)

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Computer Assisted Review: The Technology

•  Conceptual Search –  Identify ideas in ESI to

•  Build case strategy •  Auto classify and auto

code •  Group documents by

concept •  Guide queries

•  Communication Analytics –  Track communications to:

•  Pinpoint custodians •  View patterns •  Identify preservation gaps •  Determine corporate

conduct •  Trace communication flow

over time

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Reasonableness Rule 26(g)

•  that to the best of the person's knowledge, information, and belief formed after a reasonable inquiry…with respect to a disclosure, it is complete and correct as of the time it is made…

•  …neither unreasonable nor unduly burdensome or expensive, considering the needs of the case, prior discovery in the case, the amount in controversy, and the importance of the issues at stake in the action.

Pension Committee of University of Montreal Pension Plan, et al. v. Bank of America Securities, LLC, et al. 2010 WL 93124 (S.D.N.Y., Jan. 11, 2010) “courts cannot and do not expect that any party can meet a standard of perfection… the courts…expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed, and produced to the opposing party.”

Asarco, Inc. v. United States Envt’l Prot. Agency, 2009 WL1138830 (D.D.C.,Apr. 28, 2009) –  The plaintiff contended that the defendant’s keyword search was conducted in bad faith, and the

court ordered an additional keyword search utilizing four additional key terms. –  The court stated that “keyword searches are no longer the favored methodology.”

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The Preservation Obligation and Computer Assisted Review

Pension Committee v. Banc of America Securities (2010 WL 184312 [S.D. N.Y., Jan. 15, 2010])

•  Judge Scheindlin “Courts cannot and do not expect that any party can meet a standard of perfection… the courts expect that litigants and counsel will take the necessary steps to ensure that relevant records are preserved when litigation is reasonably anticipated, and that such records are collected, reviewed, and produced to the opposing party.” Rimkus Consulting Group v. Cammarata (2010 WL 645253 [S.D. Tex., Feb. 19, 2010]) •  Judge Rosenthal: “Whether preservation or discovery conduct is acceptable in a case depends on what is reasonable, and that in turn depends on whether what was done—or not done—was proportional to that case and consistent with clearly established applicable standards.”

Victor Stanley 2: Victor Stanley, Inc. v. Creative Pipe, Inc. (No. MJG-06-2662 [September 2010]) •  Judge Grimm explicitly held “that courts must consider issues of proportionality and reasonableness of the alleged spoliator’s conduct in determining whether there has been a breach of the preservation duty.”

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The Need for Advanced Technology

Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md., 2008) –  Magistrate Judge Grimm wrote that “all keyword searches are not created equal; and

there is a growing body of literature that highlights the risks associated with conducting an unreliable or inadequate keyword search....”

Disability Rights Council of Greater Washington v. Washington Metropolitan Transit Authority, 242 F.R.D. 139 (D.D.C., 2007)

–  Magistrate Judge Facciola noted, “I bring to the parties’ attention recent scholarship that argues that concept searching, as opposed to keyword searching, is more efficient and more likely to produce the most comprehensive results.”

William A Gross Constr. Assocs. v. American Mfgrs Mut. Ins, 256 F.R.D 134 (S.D.N.Y 2009)

–  Judge Peck: “This opinion should serve as a wakeup call to the Bar in this District about the need for careful thought, quality control, testing….in designing search terms or “key words” to be used to produce emails or other electronically stored information.”

Case law and research around search technology have pointed to the challenges of legacy search (keyword, Boolean and metadata) and the advantages of advanced search (concept search, contextual analysis, automated clustering):

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Defensibility

•  Audit Trails –  Who did the search when? –  What was found and retrieved? –  What were the search terms? –  What ESI repositories did the search cover?

•  Reporting –  Prepare for Meet and Confer –  Detail each step the search and retrieval process –  Include quality control

•  Random Sampling –  Reduce costs –  Insure quality control on ESI determinations –  Validate bulk coding decisions

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What to Look for When Choosing Technology

When choosing technology for computer assisted review, the challenges are the same: volume, type of content, conversational nature, and slang. Utilizing the right technology to search and analyze the data is essential.

–  Key considerations for technology : •  Limitations of keyword search •  Language independence •  Ability to dynamically understand slang

and abbreviations •  Scalability and ability to manage large

data volumes •  Automation and advanced search •  Ability to analyze rich media

including audio and video

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Thank You!

For more information please contact: Dominic Brown

VP, Meaning Based Governance

(857) 207-2262 Dominic.Brown@autonomy.com

www.autonomy.com

Copyright © 2011 Autonomy Corp. All rights reserved.