Who Prevails in the E-Discovery War of Man vs. Machine?

Is technology rendering the role of humans less important in discovery? This was an undercurrent pervading several presentations at LegalTech 2014. Although numerous tools are available to speed legal review and enhance its accuracy, the bottom line is that organizations will experience the best results – regardless of the software they choose – when they rely on humans with significant expertise in employing that technology.

This conclusion is buttressed by a recent study by Oracle and the Electronic Discovery Institute. The study evaluated the ability of various technology providers in evaluating a document pool of nearly 1.7 million documents for responsiveness, privilege, and importance to the case, or “hotness”; it also considered the cost of each vendor’s process in benchmarking accuracy.

Among the study’s conclusions were the following:

  • “Technology providers using similar underlying technology, but different human resources, performed in both the top and bottom tiers of all categories. Conclusion: Software is only as good as its operators. Human contribution is the most significant element.”
  • “One team’s human input was a senior-level attorney who spent 64.5 hours on review and analysis. The team performed best at finding both responsive documents and privileged documents.”

In sum, technology merely enables experienced humans to attain a higher level of performance and to leverage their knowledge – it does not lessen their responsibility. U.S. District Judge Shira Scheindlin of the Southern District of New York underscored this point in two ways during the judges’ keynote panel on the second day of LegalTech. First, she reminded the audience that the amendments to the 2012 ABA Model Rules require lawyers to supervise e-discovery specialists – including both outside lawyers and vendors. Although third-party counsel and vendors are held to the same ethical standards as the retaining lawyer, the retaining lawyer is responsible if things go awry. Second, if lawyers do not participate in the process of deciding which technology to use and how to use it on their matters, they will not be able to come to the table prepared to intelligently discuss discovery and will increase the risk of having to undertake the expense of redoing discovery – a point Judge Scheindlin raised regarding revealing the keywords used to search documents and the seed set used to train a technology-assisted review algorithm. Therefore, lawyers cannot simply abdicate their responsibility and rely wholly on technology to carry the day in e-discovery: they must participate actively and wisely to prevail and should rely on a TAR method that brings expert guidance into the process.

Gabriela Baron is senior vice president at Conduent. She can be reached at info@conduent.com.

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