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Update: This story has been updated for clarity.
There are several good strategies for defending the use of analytical software, panelists said last week at the Georgetown Law Center Advanced eDiscovery Institute.
Judges, opposing counsel, and juries may sometimes ask lawyers about the limitations of concept and keyword searching, the extent to which quality control was performed, and the reasons why results aren't perfect, noted moderator Conor Crowley, of Crowley Law Office in McLean, Va.
Important cases in which the legal basis of software use evolved include Victor Stanley v. Creative Pipe, Disability Rights Council of Greater Washington v. Wash Metropolitan Transit Authority, Gross Construction Association v. American Manufacturers Mutual Insurance, and Datel Holdings v. Microsoft, Crowley said.
One of the best responses is for attorneys to understand and articulate how such technologies work at the process level, the panelists agreed.
That understanding need not extend to technical levels -- "I haven't a clue how the plane works. What I care about is it gets me safely to my destination. Let's not get so obsessed with how the algorithms work," attorney Maura Grossman said, of Wachtell, Lipton, Rosen & Katz, in New York. "Frankly, most of us could not understand the answer," added District Court Judge Elizabeth Laporte, of San Francisco.
Similarly, there may be cases where a professional statistician is needed, but in most cases a lawyer is qualified to observe trend lines, "and that's probably more than most people are doing at this point," Grossman continued.
It's also important to acknowledge that software methods, just as with manual reviews, are not perfect. "This technology can tell you where to start. It can put things in different workflows," and help to make risk-based decisions, explained Laura Kibbe, senior vice president of document review services for Kansas City, Kan.-based Epiq Systems. "There's not going to be a 100 percent chance that every smoking gun gets caught, and failure to do so doesn't necessarily mean something went wrong," she said.
Analytical software can also help clients save money in unexpected ways, such as getting the opposition to pay if they request documents that your software deems unresponsive, Kibbe said.
Grossman and Laporte both commented that knowing when to defend the use of analytical software is also important. Some lawyers may feel, "I certainly don't want to be the first one," Grossman noted. However, "If a tight timelime forces you to give it a try, then I think you should, because you might learn something," Laporte observed.
Other panels at the conference in Arlington, Va. last week included examinations of e-discovery case law and the state of federal rules.
Evan Koblentz is a reporter for Law Technology News. Send e-mail.
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