Ron Friedman recently blogged an excellent critique of TREC Legal Track’s effort to objectively assess eDiscovery document review practices. Like Ron, I commend TREC Legal Track while wishing to offer comments that may contribute to their success. Like me, Ron is an attorney with long experience working in the technology sector, although for comparison with his math background I can only claim four years of college courses concerning statistical methods for assessing human behavior.
I strongly recommend reading Ron’s post for the benefit of his insights, whether or not you are already familiar with TREC Legal Track. I’d also like to offer my own observations about TREC Legal Track’s finding of low consistency between document classification decisions made by subject matter experts, who are spoken of as “gold standard” reviewers, and ordinary legal document reviewers. (In TREC Legal Track’s study, ordinary reviewers were 2nd and 3rd year law students. In real life the subject matter expert role is played by in-house or outside counsel, while much of the actual review work is performed by contract or outsource attorneys.)
Generally speaking, quality control processes involve benchmarking against some standard. Mechanical processes can be meaningfully benchmarked by physically sampling output (this is the essence of Six Sigma, in particular). For example, as machine parts come off an assembly line, samples can be selected and measured and the variance between their actual size and target size monitored not only to detect defects but to flag the processes responsible for defects. Human processes can also be benchmarked in a variety of ways. (This is in part the province of ITIL, the “Information Technology Information Library,” and the basis for the idea of “service level agreements”.) For example, those responsible for a customer service center may track the number of issues handled per hour, the type of issues handled, the number of resolutions or escalations per issue, revenue gained or lost per issue, etc.
Unfortunately, “responsiveness” and “privilege” are not only somewhat subjective in document review, standards for responsiveness and privilege will vary from case to case. For this reason standards need to be developed “on the fly” for each case, and these standards will by necessity be arbitrary (aka subjective) to some degree even if consistently applied. The good news is that the latest generation of document clustering software applications incorporate tools for developing consistent document review standards on the fly. Through an iterative feedback loop, the humans educate the machines to look for documents with certain characteristics, while the machines force the humans to refine their conception of responsiveness and privilege to a degree that the machine can reliably model it. After enough iterations have passed and the machine has reached some measurable standard of consistency, the humans can step back and let the machine do the rest of the review work. The machine does it more consistently than human reviewers could themselves, and at a much lower cost.
With document review the very idea of defining a “gold standard” for classification is less useful than it sounds. For instance, even if a panel of leading legal scholars could be formed for each eDiscovery matter, the mere fact that someone legitimately may be called a leading scholar doesn’t mean that their views will be consistent with anyone else’s — just well reasoned. But a “gold standard” is not what’s important here. What’s important is that in each case the attorneys responsible for responding to a document request do everything they can to carefully define and consistently enforce reasonable document review standards. This is what the current crop of document clustering applications are intended to do. That is the current model, anyway. I don’t pretend to be able to name the vendors who can or cannot deliver on this promise, although I think this will be the number one question in eDiscovery technology before long.
UPDATE: I discuss TREC’s role in forumulating new legal procedural rules for e-discovery in a later blog post, Catch-22 for e-discovery standards?