Phil Smith, a director in FTI Technology’s Melbourne, Australia office, is an expert advisor to clients looking to implement predictive coding. He shared some insights on how the technology is evolving in Australia and FTI’s efforts to help clients update strategies and streamline e-discovery reviews using technology that is still nascent in the region.
You work closely with both law firm and corporate clients in Australia on case management and to help them achieve e-discovery wins. Can you discuss how predictive coding is benefitting clients’ e-discovery strategies?
Broadly speaking, the biggest predictive coding windfall for our clients to date has been the use of Continuous Active Learning (CAL). This method is simpler than other forms of predictive coding; and while it’s not ideal for every situation the simplicity of the results that come from CAL can be easier to grasp for Lawyers who are new to the technology. CAL can also be applied to smaller document populations, and clients can see the results right away.
There have been a few complex matters that involved massive amounts of data, where we introduced the clients to predictive coding as a solution, and it turned out to deliver a big impact to the results. Our expertise in predictive coding methodology and strategy has helped our clients follow best practices and achieve a reliable alternative to traditional, inefficient methods.
Is it beneficial only for large, complex matters?
That is a common misconception, actually. Many clients think that because their matter does not involve millions of documents, predictive coding can’t offer any benefits. But we’ve worked on a many smaller cases where predictive coding was exactly what was needed to get the job done quickly and cost effectively. In one instance, our client had not previously used any form of technology assisted review, but needed a fast way to find the key facts in a case. There were only 50,000 documents, but the timelines were tight and it was an extremely small team dedicated to the case. Using CAL, we helped the client review a small sample set, and ultimately find a high percentage of relevant material in a very short timeframe, reviewing less than half of the document population.
Another involved a government organization that was conducting an initial investigation to determine if there was a case to be made against a certain organization. Investigations are always on tight timelines, and investigators need to determine how and if to build a case quickly. With our guidance, this client used CAL alongside concept clustering, and other advanced analytical tools. The approach found a small subset of 1,500 documents that were believed to be relevant or similar to the initial documents the client discovered – all within one day. The subset contained a significant amount of the key information the agency needed to build the case. This is a perfect example of how CAL can be used not only for large scale reviews but also as a QA tool to ensure the client has captured all relevant or even privileged information.
In recent years, judges in the U.S. and more recently the UK have provided rulings on the use of predictive coding, offering Lawyers approval and guidance on how it may be used in e-discovery. Are your clients in the Australian market reluctant to use it?
Clients worry about two main things with predictive coding: 1) transparency into the technology and 2) the courts’ level of comfort with it as a defensible process. The first hurdle is fairly easy to get over, as we can articulate the process to clients in a way that is easy to understand. Ringtail’s predictive coding is not a black box and was designed specifically to be easily understandable, so once clients have a chance to look under the hood, they quickly become comfortable with the accuracy and thoroughness of the results.
We have seen the recent rulings in the Victorian Supreme and federal courts regarding the use of TAR, and although both of these matters have fairly specific requirements, I think they will bring comfort to legal teams in adopting the technology. We are helping clients understand how the technology works so they can defend its use in courts. We often point to landmark rulings around predictive coding in the U.S. and the UK to show that it is gaining approval on the global stage, and of course are able to explain our global experience using the technology for the past 7 years.
What should Lawyers who are wary of predictive coding keep in mind as they weigh the pros and cons of adding this technology to their e-discovery workflows?
There are many benefits - particularly the ability to reduce datasets quickly, find important information early on and save considerable money on the review phase. Since the recent Victorian and Federal court rulings, both of which involved FTI, I think it was inevitable that the Australian market would start adopting this type of technology. I am extremely pleased to see the adoption rate in the past 18 months.
In speaking to many firms, we believe the most important aspect is to engage an experienced vendor, who has already been through the rigor of running predictive coding matters, can set expectations upfront, and assist in deciding on the best methods of using predictive coding, as there are a few. Even though the technology is relatively easy to administer, things can go wrong if not in the right hands. It’s also important to test and see if the technology will help on the specific matter – that way it’s not an abstract decision but one made with an understanding of the specific potential benefits.
You’ve seen growing interest among corporate clients over the last year – what are these clients looking for in a partner?
Yes, this past year we’ve seen growing interest from corporations in our region in bringing more of the e-discovery process in-house. These corporate clients have recognized the importance of gaining some control over the process and costs. Prior to this shift, we held the dominant position as the preferred provider to law firms in this region, but not many in-house legal teams were deploying their own e-discovery software. Today, we are helping an increasing number of corporate clients streamline the datasets that they are sending to their law firms.
For our corporate clients, using predictive coding can dramatically reduce datasets before they go to outside counsel, bringing e-discovery costs under control. At the same time it also helps law firms provide a more efficient and competitive model to their clients. We are delighted for law firms to make headway in ensuring they are using the most efficient strategies and tools to save their clients money. It’s a win-win situation for all.
Regardless if a client is an in-house team, government agency or a law firm, they are looking for partners that have the right combination of technology and people with expertise in the nuances of the types of matters they face. They appreciate FTI’s deep local experience and knowledge and our worldwide reach. Because FTI is a global company, we have the ability to tap into a wealth of experience from other countries that may have similar matters to draw on for guidance.
The views expressed herein are those of the author(s) and not necessarily the views of FTI Consulting, its management, its subsidiaries, its affiliates, or its other professionals.