Category Archives: Cost

Cost, Education, Implementation, Science, Scope, Strategy

Predictive Coding: Mutually Assured Destruction?

MP900385972 Ralph Losey: "So…Predictive Coding…for or against?"

Perry Segal: "I'll tell you what.  I'll attend your session, then give you my answer, ok?"

Heck, even if I had a ready answer, after sitting in on a session with these heavy-hitters, I might change my mind, anyway.

What is predictive coding?  I'll give you the short answer directly out of the accompanying documentation:  "Technology that informs the coding of uncoded documents based on their similarity to already-coded documents.  Predictive coding permits us to leverage review decisions across many documents, not just one."

Well, that certainly clears it up.  If this were The Hitchhiker's Guide to the Galaxy, I'd liken it to Infinite Improbability Drive – probably.  Or to put it in terms my mind can get around, predictive coding is sort of like assessing the probability of something being probable or improbable over a series of documents, then retaining the probable and discarding the improbable.  The important part for our purposes is that this is the latest approach to efficiently locating relevant documents – with or without human intervention.

The presenters provided two examples of what we face: 1) a theoretical example of one billion emails, 25% with attachments, that would take 54 years to complete under their scenario, and 2) an actual look into the Lehman Brothers bankruptcy, which started at 350 billion pages, culled down to 40 million pages for review by 70 contract attorneys.

A science fiction example was appropriate after all, since the requirements are astronomical.  I was in technology a long time before I became an attorney and the reality is simple.  Predictive coding – in the right hands – has the potential to be a very efficient element of document review.

What do I mean by "right hands"?  Two things, for the most part: qualified and ethical.  The "qualified" part is self-explanatory.  Ethical?  If a party plays the usual games – or only pretends to be implementing this – the entire process breaks down; hence my reference to Mutually Assured Destruction.

My answer to Mr. Losey at the conclusion of the session?  "I don't think the answer is between 'for' or 'against'.  I doubt we're going to have a choice."

Or, for my sci-fi answer…"DON'T PANIC"…

Backup & Recovery Systems, Cost, Disaster Recovery, Implementation, Scope, Strategy

“IDK”


MP900448337

"Today, more
organizations have a policy than ever before, but only one-third have tested
their policies and nearly half do not know if their policies have been tested."

~ Kroll Fourth Annual ESI Trends Report

I hadn't even opened my copy of Kroll's new report yet; that little tidbit was in their preamble.  It's an excerpt from their section, "A Decade of Discovery".  [The report is free, but you're required to register]

What else disturbs me?  Only 53% of companies have a litigation hold tool in place. 47% either don't have – or don't know if they have – a litigation hold methodology in place.  62% either haven't – or don't know if they haven't – tested their ESI policies.  62%.  Unbelievable!

That's a lot of "I don't knows".  All I keep thinking is, did the survey-respondent ask anybody before they answered these questions?  If not, they're basically admitting they're part of the problem!  Where's the communication!?

The other buzzword you're going to be hearing a lot more of is "ECA", aka early case assessment.  A lot of my colleagues have blogged about it.  You'll see it visually represented as the "ECA Funnel".  The short description is a review of a particular case to determine whether it's worth prosecuting – or defending; usually based on cost analysis and/or drag on resources.

Do you hear that sound?  That's the creaky door of the e-Discovery Insights vault opening to two posts from November of 2008 about proper testing.  Part I covered identification & preservation. Part II covered collection.

This just goes along with my premise; eDiscovery issues are solved at
the beginning, not the end.

Q.E.D.

Cases of Interest, Cost, Criminal Liability, Duties, Judges, Sanctions, Spoliation

Victor Stanley II: The “Gang that couldn’t Spoliate Straight.”

Pony Up! Anyone remember this?  Back in December 2008, I warned that someday, eDiscovery misconduct would result in a bad actor going to jail.  Well, we've arrived at that point.  Judge Paul Grimm deemed Defendant's spoliation misconduct so serious that if he doesn't immediately pony up for Plaintiff's attorney fees and costs, he faces two years in prison.

As I mentioned last week, I've been tied up in trial, so I'm going to send you to Ralph Losey's excellent (as always) post about the case.

As someone who has personal experience with attorneys hiding the EDD football, I'm all for this ruling.

Note: I included this post in the "Criminal Liability" category because I believe it's an important read to anyone researching the subject; but this isn't a criminal sanction.  I just want to make that clear.

Backup & Recovery Systems, Cost, Disaster Recovery, eDiscovery California, eMail, Implementation, Security, Technology

e-Discovery California: Don’t be EVIL, Los ANGELes…

2 Comments

MP900401409 Theory is usually easier than practice.  You project managers know exactly what I'm talking about.  Courses like the Project Management Body of Knowledge (PMBOK) have value, but one item tends to be underestimated; the human element.  Projects always look great on paper but unfortunately, they're not executed by robots.  They're executed by people with varying talent, ambition, health and – dare I say it – competence levels.  Add to that the other human elements; management support or lack thereof, other duties of the team (distractions), unexpected emergencies ("Hey, I need to borrow Steve for a few hours…"), predictive miscalculations and – dare I say it, part II – the competence of the project manager.

With this in mind, it comes as no surprise that Google has missed a deadline to convert the City of Los Angeles email system to the cloud due to security concerns with the L.A.P.D.'s data.  Tha-a-a-a-a-t's gonna cost 'em.  Worse, they beat out Microsoft for the contract.

Ultimately, the issue will be resolved, but it begs the question – what happens when L.A. requests to retrieve data?  Another cautionary tale about 3rd-party vendors…

Cost, Duties, Implementation, Law

FinReg: The Next eDiscovery Opportunity?

MP900448202 Like it or not, Financial Reform is upon us.  If you're interested in a lengthier treatment, try this.  Both technology and legal professionals who read this blog will run the gamut of opinions as to whether the law is any good; or whether it'll accomplish a thing, for that matter.

However, we attorneys are supposed to be agnostic when it comes to analysis.  We accept that the law exists, do our best to interpret it, then help our clients understand and comply with it.

Compliance.  That's the definitive word.  According to my interpretation, FinReg will require financial firms to implement a mountain of new document management and retention policies & procedures.  In fact, I wonder how some firms will comply, absent a massive capital outlay.

Intent of the law notwithstanding, I think it may generate a ton of new business for those in the ESI arena.  Of course, that presupposes they don't ignore it…

…just sayin'…

Cost, Implementation, Management, Media, Sanctions, Strategy, Technology, vDiscovery Insights

Bumper to Bumper, Part II: Steve Jobs is Wrong

Any guesses as to which guy is Steve Jobs and which guy is the customer?  Hint: Steve Jobs always wears black.

If you read Part I of this series, in closing, I asked whether the "bumper" solution was a good decision from a management standpoint.  My opinion?  Yes, but only if you look at it from a purely financial perspective.  From a customer service/relations standpoint, it's a disaster.

Let's review the progression of events, from initial customer complaints to Apple's eventual response:

  1. Denial – "There is no problem."
  2. Blame the Customer – "You're holding it wrong!"
  3. It's all in your Head – "Our s/w is erroneously telling you that you have a problem."
  4. Blame your Competitors – "Everyone else has the same problem."
  5. Denial II – "There is no problem, but we'll give you a free bumper."

What's the 1st thing that comes to mind?  This isn't indigenous to Apple.  I've heard this song before.  Where do think the joke, "That isn't a bug, it's a feature." comes from?  I just think that with Apple's dedicated user culture, they have a better chance than most to pull it off; but that doesn't make it right.

I've spoken to career Apple customers who are so incensed by what they term the arrogant attitude of the company (usually referring to Jobs, specifically) that they've finally had enough.  Apple can afford to lose them, but that's not really the point, is it?

So where's the eDiscovery tie-in?  Where do I start?  You might be in a corporate IT department.  You might be inside counsel.  You might be outside counsel.  You might be me – a consultant, positioned somewhere in-between all of them.  What are you going to do when management adopts the attitude:

  1. Denial – "We don't need to implement this."
  2. Blame the 'Customer' – "The client doesn't want it."
  3. It's all in your Head – "We don't need to comply with the rules."
  4. Blame your competitors – "Nobody else is implementing it."
  5. Denial II – "We'll take our chances.  If litigation arises, we'll look at it then."

The difference between Apple and you?  They have a public relations issue and face class-action lawsuits.  You – and/or your management are likely to face serious sanctions.  But don't worry; that's only if something goes wrong…

 

Cost, Implementation, Management, Media, Strategy, Technology

Bumper to Bumper, Part I: e-Lessons Learned from Antennagate

BumperCar_Front If you're a long-time reader of this blog, you know that I used to post frequently about relationships between techies and management and how successful interaction between them is critical to the success of an undertaking; internally and externally.  As you can see from the headline, I'm using Apple's response to the iPhone 4G 'debacle' as a teachable moment.  Some will take issue with my use of the word debacle, but I'm speaking in terms of the negative press this issue has generated.  Caveat: I own an iPod Touch (but you already knew that).

If your initial thought is to wonder how any of this applies to eDiscovery, read on…

PART I:  STEVE JOBS IS RIGHT

Make no mistake.  Steve Jobs knows his customers – and so do I.  My first real exposure was when I was tasked with managing the only MAC network at Hughes Space and Communications (this goes back to 1993-94).  I quickly learned about the culture of MAC users.  As often happens to me – and many of you, I suspect – once that item was on my resume, the MAC element became a regular part of many of my future projects.

Stevie and I had a convo and we agreed on several points: 1) There's a hardware issue (not that we'll admit it), 2) the problem affects a relatively small number of customers, 3) a plurality of dedicated customers will back us, no matter what we do, 4) if we're forced to issue a recall, it could cost billions, 5) we know that a bumper/case/duct tape will solve the problem (not that we'll admit there is one) for most customers, so 6) let's go that route and offer a free bumper/case/duct tape (sorry, couldn't resist that last one).

The cool thing about #6?  We know that a lot of customers who do have the problem won't act.  On the other hand, we also know that others who don't have the problem will; in the end, probably a wash.

If you've perused articles on the issue – and read the accompanying comments – you'll probably note that the scenario has played out the way Stevie and I thought it would.  Overall, reaction has been favorable, and every time someone posts an article or comment critical of the solution, they're usually swamped with 'the faithful' calling them whiners and defending Apple, usually making the effort to express how much they love their iPhones.

So, was it a good decision from a management standpoint?  And where's the eDiscovery tie-in?  I'll bring it all home for you in "Part II: Steve Jobs is Wrong"…

Backup & Recovery Systems, Cost, Disaster Recovery, eMail, Sanctions, Technology

FINRA Fines Firm for Failure

J0442430 I plucked this particular headline out of many as an excellent real-world illustration of the downside of failing to properly retain and archive data.  In this particular instance, Piper Jaffray paid FINRA (the Financial Industry Regulatory Authority Inc.) a $700,000 fine because they were unable to produce an electronic copy of a single email message for an investigation.

Unfortunately, that's when Piper "informed" FINRA about the other 4.3 million emails they failed to retain over a period of six years.  Obviously, I don't have the inside scoop as to why this occurred, but based on experience, I can tell you that $700,000 buys a lot of data protection.

As I've pontificated on many occasions, what if this involved a lawsuit or a tax issue; or a host of other issues?  Does it really matter?  Proper data retention and management may involve a large capital outlay, but pays for itself over and over in the long run.

If you're the person tasked with getting this done, forward this story to your bosses – or present copies at the next meeting.  Eventually, someone will realize that avoiding the issue is simply penny-wise and pound-foolish.