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Recently, I was asked by one of my major corporate clients to sit in on a presentation by Microsoft about Microsoft Office 365’s Advanced eDiscovery package. Having worked in the O365 environment on the company’s “standard” eDiscovery package, I was quite interested in taking a look at the advanced package. A primary function of this advanced package was its predictive coding (Technology Assisted Review, or TAR) capabilities based on the excellent Equivio software Microsoft acquired in 2015.

Since there is no review platform within O365, the Microsoft representative was joined by an outside vendor as a partner, perhaps the model was for the attorneys to utilize TAR, conduct intelligent searches using Equivio analytics and “learning algorithms” and then transfer the data to the vendor with the platform so that the attorney could then really review and code the documents? Before we knew it, it had become a geek fest laced with numerous descriptions of what the software could do and the excitement that I also often experience in working with analytics – geek alert!

Some very powerful imagery washed across the surface of this ship sailing head on into the great ocean of data (figuratively). That was the very real image of attorneys receiving a Request for Production of Documents within the context of litigation and having to sort things out, responsible to the Bar for competent representation even in the wilds of eDiscovery.

Frankly, attorneys by and large want to get the job done and get it done in a defensible manner. They are not interested in getting it done to perfection. They want to do it well, which means defensibly, in a manner that speaks to the broad brush strokes of the law in this rather esoteric area of practice.

Vendors in eDiscovery need to be reminded that the legal profession is not driven by experts, as important as they might be in a case, but by attorneys.

Many vendors just don’t get it, and I am often humbled by a Deputy General Counsel for a large multinational corporation at a national conference that I attended a few years ago helping just one such vendor understand.

The vendor, who had developed its own TAR software informed this Deputy GC that his software could outperform teams of attorneys on a review by review basis, significantly. This gentleman, a code writer straight out of a Dilbert comic strip with beard, suspenders, and all, took great pleasure in explaining the intricacies of the algorithms and how they all worked and why they outperformed attorney reviewers. After completing his presentation, it was almost as if he expected applause. Rather, the Deputy GC stood up from his seat at the table of panelists in front of the room and quietly looked at the vendor and quietly said, quite simply, “I do not care. I really do not care. I only need defensible, not perfection, or even marginally better.”

Vendors in eDiscovery need to be reminded that the legal profession is not driven by experts, as important as they might be in a case, but by attorneys. Attorneys want nothing more than to survive the case, hopefully, win for their client, in a manner that is basically competent and defensible. Nothing more. In fact, attorneys nationwide in litigation practices were celebrating the Sedona Conference’s release of its “Commentary on Defense of Process and Guidelines for Developing and Implementing a Sound E-Discovery Process.”

The very first Principle is “An e-discovery process is not required to be perfect, or even the best available….” This was followed in quick order by other Principles such as “responding parties are best situated to evaluate and select the procedures, methodologies, and technologies for their e-discovery process” and “a party should not be required to provide discovery about its e-discovery process without good cause.”

Yes, finally, the profession is moving out of the era of “smoke and mirrors” in the eDiscovery world toward (finally after more than a decade) a more reasoned, rational, and proportional response to the eDiscovery phenom that crashed onto the shore of the profession with cases like Qualcomm and Zubulake, sending attorneys into David C. Martin’s Wilderness of Mirrors.

Unfortunately, like my friends in the presentation about an admittedly great software, vendors are still captivated by the complexities underlying everything we do in the world of eDiscovery. This is not the language of the profession nor will it ever be. The profession tolerated it for a while because it thought it had to. Now, the door to keeping it simple is open and attorneys are dashing toward the light!

Remember, attorneys and eDiscovery experts alike, it really is a simple matter. Our clients want a simple, defensible, understandable approach to getting the job done. Nothing more, and nothing less. The “smoke and mirrors” that still captivate most eDiscovery experts as an exotic mist through which they once could captivate audiences of attorneys is now dissipating. This is a welcome sight. Now, those of us who always thought it a bit much can simply get down to the simple work that eDiscovery is really about.


About Author: Michael Yager
Author

Michael Yager is an expert in eDiscovery, a published author, speaker and trainer on compliance with state and federal eDiscovery protocols. Michael has spent over 20 years in eDiscovery support. If technical knowledge of standards is what you need, Michael is your resource! Michael brings to RDI a vast knowledge of eDiscovery — the ins and outs of day-to-day issues with ingestion, culling, production and review. Michael is a graduate of The College of William and Mary. His experiences include serving for the Department of Defense, on the corporate staff of Bell Howell Corporation in Chicago, and in law firms.