Category Archives: Implementation

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"…

e-Discovery California: Turn your Head & Cough

MP900386083 How long has it been since I posted something California-specific?  (September 22nd, 2010, in case you wanted to know…)

This opinion piece by a consumer watchdog group (literally named "Consumer Watchdog") does a good job of expressing the tensions between the FTC and the State of California regarding approaches to internet privacy.

Now, I've certainly banged the privacy drum loudly this past year – and I don't intend to focus on it as much in 2011, lest I risk being compared with Chicken Little (by the way, just because a chicken tells you the sky is falling, doesn't mean it's not true) – but my focus has been on the evidentiary risks of not protecting your privacy, whether it be on an individual basis, corporate or somewhere in-between.

This is an e-discovery blog, after all…

Nor do I necessarily agree with the concept of a "do not track" list, as I've mentioned before (because in my opinion, it probably won't work).  There has to be an effort at formulating comprehensive policy, rather than acting like tracking a node is somehow like tracking a telephone number.  What do I mean?

  1. Has anybody thought about how one would manage such a list?  How will one identify the requestor?  By name?  By IP#?  By a unique device name/code?  (Whoops; there goes your privacy).  Suppose the individual has a PC, a laptop and a PDA – and they swap PDAs annually.  How will the database account for this?
  2. Take into account everything above, now add all of the devices in a corporate environment – and we know how often those are refreshed.  Will the firewall be enough?
  3. Now, what about the spouse, the children and all of their devices?  Children are by far the most vulnerable because, a) they already think they're bulletproof and b) they don't yet fully understand the concept of privacy (heck, neither do a lot of their parents!)

On the plus side, there are brilliant minds out there who may actually have answers to some of these issues, but the point I'm making is, you can't just slap a feel-good name on something, then give the public the impression that it's a panacea to all of their concerns.

We're not just talking about preventing annoying sales-calls at dinnertime.  Placating the public without actually achieving the goal will increase the risk (through a false sense of security), not reduce it.

Net Neutrality or Swiss Cheese?

MP900442570 By now, you've probably heard that the FCC adopted new 'Net Neutrality' rules earlier this week.  I combed copious pieces on the issue, looking for one that would best examine the background of how this all came about and I feel that this article, written by David Goldman for CNNMoney.com, did the trick.

What I also learned is, there's absolutely no consensus regarding whether this is a good thing or a bad thing.  It all depends on who you ask (or read).  Of course, it depends heavily on which dog one has in this particular hunt, but there's no one-size-fits-all solution to this issue.  If you'd like to examine another opinion on the possible winners & losers, here you go.

My view?  It's way too early to make an attempt at in-depth analysis.  Why?  Any lawyer will tell you; it's not what the rules say, it's how they're interpreted and implemented.  So, I'd rather let this develop a little further, then re-visit.

In the meantime, fondu, anyone?

If Viagra Treats ED, will PBoR Treat EDD?

MP900403705 Yeah, I know…gratuitious…but I thought you'd come (don't even go there) to expect that from me on a Friday…

Thing is, yesterday I posted about the humor I observed in litigation response, but I wasn't laughing that heartily, believe me.  I didn't have enough time to flesh out the greater point, but for those who've seen the movie, you know what I'm talking about.  For those who haven't, I suggest you do – and not the 2008 remake.  As the team comes together, you'll see everything we see in real-life litigation; mistrust, disorganization, hidden personal weaknesses, incomplete planning/testing, secret and diverging agendas, hubris, the works.

My favorite is how a small slip of paper almost results in a nuclear catastrophe!

As I learned in my early days, it's not enough to point out risks; it must be accompanied by a proposed plan to address those risks.  The federal government (specifically, the Commerce Department's Internet Policy Task Force) is taking a shot at it with this report (warning – link opens 88-page pdf) calling for the creation of a so-called "Privacy Bill of Rights".

Obviously, the easiest thing to do is criticize, but as I've said before, you can't fault people for trying.  At the very least, this opens a dialogue.  But if I were to make some cursory observations, I'd point out – as some of you would also – that an individual's position on their personal right to privacy may not necessarily be best represented by Procter & Gamble, Walmart or AT&T (three of the panelists and/or respondents).

Looking at the list of entities involved in the symposium, I'd certainly be on the lookout for mistrust, disorganization, hidden personal weaknesses, potentially incomplete planning/testing, secret and diverging agendas, hubris, the works.

Ain't that a pill!!!

“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.

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

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…

The Completion Backward Principle

"An IT executive turned California
e-Discovery Attorney and Consultant shares his insights – with an
emphasis on facilitating the relationship between legal and technology
professionals."


MP900442850

Remember that?  It's the mission statement of this blog, as I explained in my flagship post almost two years ago.  So, how's that workin' out for you?  This survey from Recommind says not so well.  According to their results, cooperation between IT and Legal has deteriorated across all platforms.

Yes, there's probably an economic component here – Recommind
notes this – but I agree with their assessment.  It doesn't explain the
extreme change over a single year.

As we all know, statistics may be interpreted several ways.  Here's my take.  If I were to wager, I'd bet that many of these entities tried in good faith to get legal and IT to work together; and what we're seeing in the 2010 report is that the groups didn't get along and have either given up or severely curtailed their joint activities.  Communication breaks down rapidly once bad will develops.

The Gartner Group predicts that companies will escalate the process of hiring what they refer to as "Legal and IT Hybrids" to "mediate" between the two departments.  Hello?  Haven't I been saying this all along?

Subtlety isn't working, so I'll be direct.  There's the phone.  Call me.  I can fix it.

Ok…you can call collect…

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'…

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