Predictive Coding and Outsourcing – Contract Attorneys, Nothing To Worry! Ask The E-Discovery Expert!

Contract Attorney Central recently found themselves fortunate enough to meet with Tim Phillips, Sales Director of the Legal Technologies division at Kroll Ontrack – the global big hitter in all things e-disclosure, data recovery and information management.

We picked his brains about the future of e-disclosure and how he feels the contract attorney and document review market will respond to the developments and threats it currently faces. Below is an excerpt of our meeting with Tim.First and foremost: predictive coding!

Contract Attorney Central: “How has the advent of predictive coding changed Kroll Ontrack’s approach to e-disclosure following Judge Peck’s decision in Da Silva Moore and how are you preparing for the knock-on effect?”

Tim Phillips: “Predictive coding is of course something we are alive to and conscious of. I think it is something that will not wipe out the requirement for contract attorneys actually eye-balling documents. You still need that human checking element and so predictive coding will not totally replace the requirement of human document reviewers. In any case, I envisage that it will only be used in specific, very clear-cut cases; for example, if you have a construction arbitration where the type of steel girder used is in question, then predictive coding could be used very effectively to first tier review many documents on the basis of very clear search terms and filters. However, if you’re looking at an internal investigation that hinges on whether employees of a global bank did or did not engage in anti-competitive behaviour, this is much less clear-cut and the hook on which to hang your predictive coding coat may not be present at all, or at least, not to anywhere near the same degree as the construction arbitration example.”

Like we wrote in our previous post “The Contract Attorney – An Extinct Animal? Contract Attorney Central Survival Tips!“, Tim also clearly feels that the onset of predictive coding won’t lead to the exclusion of the requirement of humans either immediately or in its totality at all. Some relief, then?

Our second topic of discussion was about the threat of outsourcing:

Contract Attorney Central: “We’ve seen the influx of so many US firms coming to London over the past few years and everyone, nowadays perhaps more so than ever, is acutely conscious of cost. How, then do you think the future of contract attorneys in London or US cities will be affected? Do you see a growing trend in the farming out of document review projects to ‘cheaper’ European countries?”

Tim Phillips: “This is the bigger threat [than predictive coding] to contract attorneys looking for document review projects over the coming years. Projects are more often being sent to India, Ireland, etc, and so I think you will start to find fewer firms or recruitment consultancies who are offering London-based document review projects.”

We share Tim’s thoughts on this, however we feel that the impact of this isn’t going to be quite as great as he alludes to, given that most of the follow up work such as second level review, translations, document descriptions in notes fields, privileged reviews, quality-control and production related tasks are still done by the firms and their domestic teams.

So, fellow contract attorneys and Contract Attorney Central followers: What are your thoughts on the matter? How are you mitigating against the possible decrease in doc review work? Do you think there is nothing to worry about at all?

6 thoughts on “Predictive Coding and Outsourcing – Contract Attorneys, Nothing To Worry! Ask The E-Discovery Expert!

  1. I am not familiar with predictive coding. If it is anything like highlighting key search terms and can be made to work unlike the highlighting function it will safe some time and will cut down on the amount of contract attorneys required. At least this is what has been happening on the reviews I have been on where key term searches had been undertaken. Many times documents do speak of the item in questions without mentioning it thus setting up search term reviews to classify many documents which are responsive as non-responsive and it takes actually reading the document to discover this. Will the other side ever find out? Perhaps not but in this day and age where document review is being used as a litigation tool to bring the defendant to his knees by increasing review costs, where opposing counsel will go to court to ask for more and more additional documents I foresee that the reliability of predictive coding will have to be shown or otherwise documents deemed not relevant may have to at the very least be spot checked. Especially in cases where the judge may not be a fan of the industry being sued, the company in particular or the law firm representing it. Yes, I am talking from experience where we had to go over documents already reviewed and change coding and delete redaction in response to the courts latest discovery decisions.

    As to outsourcing… I have also worked on a bankruptcy case where a massive amount of documents had been reviewed in the Philippines before we ever got started on them in NY. I have also been on a review in Paris where the company did not want to have its documents leave the company’s own premise unless it was forced to do so in response to discovery requests. My very first review dealt with IP issues. You would think that the chemical formulas we had a chance to review would have been their main concern. Not so. The system was set up to literally throw us out of the program each time we clicked on a document which contained encoded information about corporate salaries. Only actual law firm associates got to review these documents. The list of corporate and company secrets is endless. In the bankruptcy case no one cared who saw what. Cost was the bottom line. Besides the company had dealt in derivatives. Not really a hot commodity right now nor a secret worth stealing unlike other products or business / marketing plans. Once off the corporate premises any number of things can happen to the documents and once a secret is out it is out for good. Servers can be hacked into, other governments have different approaches to Internet security, premises maybe broken into … the list of potential mishaps is endless and corporate paranoia real or imagined is alive and well. So I would say that most reviews will likely not be outsourced and if I am wrong, then I will outsource myself as well. Flexibility is the name of the game. Today I was actually approached about substantive /none-document review work in India. If it works out I may just grab my Yoga mat and Namaste India, here I come, a globalized,self-outsourced Contract Attorney.

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    • Hi Andrea,
      Predictive coding is not really in the same ball park as keyword search terms, insofar as it is independent of them. The method combines lawyers’ input (to ‘teach’ the computers) and computer algorithms to find key and other relevant documents quickly, irrespective of keywords. It aims to ‘get within’ a document similar to the actual reading by a reviewer and is not reliant on keywords, which is indeed the case with a keyword search. It is being used predominantly in Early Case Assessment (ECA) and (to a slightly lesser extent at the moment) in the larger document review process after ECA, although its use in the larger area of document review generally is ever increasing. We’re currently waiting on case law that is going through the courts as we speak to further allow/encourage its use.
      The benefits of predictive coding are its supposed massive accuracy and great efficiency gains, which – naturally – translate into reduced costs. Or that’s the idea…!
      You interestingly refer to whether or not a particular judge is a fan of the industry. Well, that’s very much on point at the moment, with Judge Peck in the big predictive coding Da Silva case having to defend himself against plaintiff’s accusations of being ‘too cosy’ with the predictive coding industry. See these guys:
      An increasingly interesting area of the law…

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    • Hi again Andrea,
      I wanted also to reply to your interesting comments on outsourcing. We have seen an ever-increasing trend for law firms or review outsourcing firms to outsource first level review to foreign shores. Cheaper labour, less stringent labour laws, etc allow for the bulk of the work to be done at a much lower cost (and perhaps quicker) than either mainland US or Europe. I see this trend only continuing to increase, whether the cases revolve around bankruptcy, IP, banking, fraud, contract, etc etc. You’re right to identify a limiting factor on the trend in outsourcing – that being certain governments’ or large companies’ policies on what they are permitted to do with confidential or privileged information. To the extent that those laws do not permit that information to leave the jurisdiction, then outsourcing at any level may not go ahead. However, it is interesting to note that many, if not all, of the big e-disclosure vendors are looking at ways of getting around this problem – another interesting area within this ever-changing ‘new’ area of law!
      PS. We *love* your idea of outsourcing yourself – and following the reviews internationally, wherever they may take you! We would love to hear more about this – both your thinking behind it, the catalysts and your experience if, indeed, you and your yoga mat do jump on that plane and head east!
      Many thanks and please do keep in touch with your updates!

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