ACEDS January 2015 Members Only Webcast
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This document summarizes a presentation by Evan Benjamin and Nancy Regula on proportionality and the use of technology in e-discovery. The presentation discusses the Biomet case where the court found the company's e-discovery process was not proportional. The presenters analyze how Biomet could have avoided problems by beginning with predictive coding, acting cooperatively during negotiations, and following best practices for workflows. They emphasize that cooperation, proportionality, and proper use of technology must work together and that lawyers have an ethical duty to understand these relationships and the role of relevant technologies.
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ACEDS January 2015 Members Only Webcast
- 1. Members Only Proportionality is Technology: The New Rules Analyzed Through the Eyes of Biomet Presented by: Evan Benjamin, CEDS Nancy Regula, Esq., CEDS January 23, 2015
- 2. Members Only New Membership Features
- 4. Members Only Presenters Evan Benjamin, CEDS, ENCE | E-Discovery Consultant | LDiscovery • Litigation support, e-discovery and forensic consultant for a service provider and a law firm in the Northeast US Nancy Regula, CEDS | Document Review Attorney | Willkie Farr & Gallagher • Focuses on document review best practices, project management; Relativity Review Specialist
- 5. Members Only What happened in Biomet? • “What Should The Workflow Have Been” versus “What The Workflow Was” • Can you implement technology and get what you want? • Did Biomet get the result they wanted? • Is proportionality an assumption or is it a tweak and a choice?
- 6. Members Only How could Biomet have avoided their problems? • Beginning with predictive coding initially • Acting cooperatively, not unilaterally • Following the patented workflow
- 7. Members Only New FRCP 1 - No longer can courts simply defer to the parties’ agreements “These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.” But this is not the end of the story for Biomet….
- 8. Members Only “Today’s dispute picks up where the April order left off.” The Seed set… …to identify or not?
- 9. Members Only Recommind’s Patented Predictive Coding Workflow Iterations: Iterations are multiple occurrences of category training that identify additional documents that are substantively similar to seed documents. Documents identified as being probative of a category during human review using Predictive Analytics are used by the Predictive Coding algorithm as further examples of the documents that belong in that category, enriching the patterns the algorithm iteratively applies to the as-yet uncategorized documents in the corpus. The cycle is as follows: • The probative seed documents are used as input for a categorization run • The system identifies documents that are substantively similar to the seed set for such category and returns them in ranked order (from “most” like the seed set to “least” like the seed set) • The case team reviews/codes the suggested documents, providing further calibration for the Axcelerate System; and • All probative seed documents are then ‘trained’ upon, with the iterations continuing until no more algorithmically similar documents remain.
- 10. Members Only HOW DO WE GET FROM SEED SETS TO PROPORTIONALITY?
- 11. Members Only Cooperation is key but the right kind of cooperation is necessary • Cooperation + • Proportionality + • Technology ONE CANNOT EXIST WITHOUT THE OTHER
- 12. Members Only Old Rule 26(b)(1) – “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense...” versus New Rule 26(b)(1) - “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case…” Can we be proportional if we don’t cooperate? but What if we cooperate on the wrong things?
- 13. Members Only And let’s not forget… FRCP 26(g) & Model Rules of Professional Conduct There is an ethical duty to understand the relationship between cooperation, proportionality and technology Lawyers must have “a basic understanding of the benefits and risks of relevant technology.”
- 15. Members Only Please email us with any questions regarding these topics Evan Benjamin Ebtrain@gmail.com Nancy Regula nancy@nancybethlaw.com
Editor's Notes
- Hello and welcome and to this ACEDS members only webcast, Proportionality IS Technology: The New Rules Analyzed Through the Eyes of Biomet. I am Robert Hilson of ACEDS, and I am joined today by two CEDS-certified ACEDS members who have an excellent presentation to share. I will introduce them in moment, but first I want to tell you about a couple of new developments.
- So, if you’ve visited ACEDS.org recently, you’ll see that we prettied it up quite a bit and it now features a new look and new logo that we hope you like. You`ll also notice some new features and functionality on the site, including the member profile section, which is under the My Account tab that you see at the top of the screen. I encourage you, if you haven`t already, to go into this page and update your profile. Add a short bio so people know who you are, and your contact information if you`d like as well. That makes it easier for you to connect with other members and CEDS, and for them to connect to you.
- If you havent heard, we will be holding our annual conference September 29 to 30 at the Gaylord National Resort in Washington, DC. A live certification prep course will preceed the conference, as always, on the 28th. And we expect another first-class show. We’ve already announced a number of prominent speakers, including the federal judges you see on your screen – Judges Grimm, Rodriguez and Waxse, as well as Judge Thomas Vanaskie, who sits on the Third Circuit Court of Appeals. ACEDS members get the best rates on the conference, and if you are thinking about joining, I encourage you to register before the super early bird pricing expires.
- Alright, let`s get started. We have two excellent presenters here today. Evan Benjamin is a CEDS-certified and Encase certified consultant at Ldiscovery in Pittsburgh, where he focuses on litigation support, e-discovery and forensic consulting for that service provider as well a law firm in the Northeast United States. An expert in predictive coding strategies, he formerly served as an analyst and technician at OrcaTec and worked in a similar role at Fiserv. He is also a member of the CEDS Examination Review Committee, and has been involved in the ongoing process of updating the exam and making sure it stays current and accurate. Evan, pleasure to have you here. Thanks for doing this. Evan is joined by Nancy Regula, a CEDS-certified attorney at Wilkie Farr & Gallaher in New York, where she focuses on document review best practices and project management. Nancy is also a Relativity Review Specialist and has earned her Graduate Masters Certificate in E-Discovery Project Management from Bryan University. Formerly, as a solo attorney, she practiced family law, estate administration and criminal defense. And she, like Evan, is also a member of the CEDS review committee and an editorial contributor to ACEDS. So we’re keeping her busy. Nancy, great to have you here. Thanks for joining. Before we begin, I want to encourage everyone on the call to ask questions. We will try to field them in the course of the presentation, but will certainly make time at the end to field the ones we don’t get to… Okay, Evan and Nancy, I will turn it over to you.