Law Times

November 11, 2013

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Law Times • November 11, 2013 Page 17 BRIEF: E-DISCOVERY Lawyers warming up to technology-assisted review BY MARG. BRUINEMAN For Law Times T he volumes of ever-increasing data in electronic discovery can be overwhelming, which makes manual reviews cumbersome and costly for the client. Technology to help with those reviews has existed for some time and has started to appeal to the legal community as it searches for assistance with what has become a laborious process. "There are all these different methodologies to use techniques to expedite reviews," says Susan Wortzman, founder of Wortzman Nickle Professional Corp., whose practice focuses on e-discovery and records management advice to law firms and corporations.  "It's about how you use the tools." In 2008, the Sedona Canada principles for addressing electronic discovery recognized the need for a universal understanding and a common approach to electronically stored information. It also recommended the use of electronic tools and processes. A handful of decisions in the United States and Canada have supported using technology-assisted review, also known as computerassisted review. There are a variety of tools to choose from along with a series of techniques to use. The technology available ranges from keyword-searching software to predictive coding or algorithms that replicate the user's categorization of documents. It helps identify and classify large volumes of electronic information. "Lawyer review has evolved from paper, highlighters, and yellow stickies to the review of native files where highlighter and yellow stickies are electronic, not manual. . . . The idea of adopting technology to reduce e-discovery costs is enticing. But beware. Before implementing any new technology, it is essential to understand how the technology works, how to use it, when to use it, and how to validate the results that you receive. Without those steps, the technology may not yield the promised results," Wortzman wrote in a paper, "Technology assisted review ment review services at Epiq Sys— What is it?" that she delivered to tems Inc., is twofold: prioritizing the Ontario e-Discovery Institute the documents so lawyers can look on Oct. 30. at the most important ones first and Martin Felsky uses the analogy accessing a certain percentage of of autopilot, a technology conthe documents the software identitrolled by the pilots that assists fies as most likely to be responsive. them in doing their job by main"We've seen it run up to several taining aspects of the flight such million documents," he says. as speed, direction, and altitude. "Even for smaller collections, it Spam filters, he adds, are procould be really handy," adds Mary grammed similarly to examine Ann Benson, Epiq's director of e-mails and choose which ones to consulting services. put into the spam box without hu"The underlying application man intervention. has been used for 20 years." In the legal profession, which She says when the technology has been slower to adopt that aphas the right instructions, it's able proach, the aim is to identify the to make more consistently reliable relevant issues. calls about the relevance of the "I would categorize it as an exdocument to the issue at hand. It's pert system where the computer also free of human foibles. learns from the human interacStudies, she adds, have shown tion to help the human with a par- 'If you have to get lawyers to go through all those docticular task," says Felsky, national uments, it could be very expensive,' says Martin Felsky. that the likelihood of a human review and a manual search having e-discovery counsel at Borden better results than the technological approach is low. Ladner Gervais LLP. "Under the best circumstances, human review alone "It's at the leading edge of what's happening in electronic discovery right now. If you have to get lawyers to has shown to be at best 65 to 75 per cent complete," she go through all those documents, it could be very expen- says. "The software doesn't waiver in its understanding of the nature of content. It doesn't get tired nor lose its sive," he adds. But because it arises in the context of litigation and the concentration." Whether the technique used is human, word search legal issues are still uncertain, lawyers have been slower than other professionals to move ahead. Felsky describes or technologically aided, Wortzman advises lawyers to it as a very powerful tool that saves enormous amounts keep the method consistent when selecting samples and analyzing the results. And she also suggests validating the of time. Given the volumes of documents resulting from e- results by sampling. "It is important to remember that any technology is discovery, which could amount to the equivalent of hundreds of boxes, there's clearly a need for a tool to comple- just one tool in the litigator's toolbox, and just as a builder ment the manual process. The key is to ensure both sides wouldn't use a sledge hammer on a nail, some types of leagree on the process so it's not subject to court challenges. gal technology are just not suitable in certain situations," LT The goal, says Ed Burke, senior vice president of docu- she wrote in her paper. LEXPERT® LEGAL EDUCATION SEMINARS FALL 2013 SCHEDULE WEBCAST OPTION AVAILABLE FOR EACH COURSE! THE 6th ANNUAL ADVERTISING AND MARKETING LAW FORUM December 10, 2013, Toronto, Ontario ANTI-BRIBERY AND CORRUPTION COMPLIANCE: COPING WITH THE ONSLAUGHT December 9, 2013, Calgary, Alberta December 12, 2013, Toronto, Ontario CLOUD COMPUTING: A PRACTICAL APPROACH November 28, 2013, Toronto, Ontario CONDUCTING EFFECTIVE WORKPLACE INVESTIGATIONS: WHEN IGNORANCE ISN'T BLISS CORPORATE GOVERNANCE 2013: MEETING SHAREHOLDER EXPECTATIONS December 3, 2013, Toronto, Ontario December 5, 2013, Calgary, Alberta DEALING WITH THE LEASE: LEGAL PRINCIPLES & LITIGATION PERILS! 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