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Proportionality is Technology: The New Rules Analyzed Through the Eyes of Biomet

Presented by: Evan Benjamin, CEDS

Nancy Regula, Esq., CEDS

January 23, 2015

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New Membership Features

3Visit ediscoveryconference.com

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Presenters

Evan Benjamin, CEDS, ENCE | E-Discovery Consultant |LDiscovery • Litigation support, e-discovery and forensic consultant for a

service provider and a law firm in the Northeast US

Nancy Regula, CEDS | Document Review Attorney | Willkie Farr & Gallagher • Focuses on document review best practices, project

management; Relativity Review Specialist

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What happened in Biomet?

• “What Should The Workflow Have Been” versus “What The Workflow Was”

• Can you implement technology and get what you want?

• Did Biomet get the result they wanted?• Is proportionality an assumption or is it a tweak

and a choice?

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How could Biomet have avoided their problems?

• Beginning with predictive coding initially

• Acting cooperatively, not unilaterally• Following the patented workflow

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New FRCP 1 - No longer can courts simply defer to the parties’ agreements

“These rules govern the procedure in all civil actions and proceedings in the United States district courts, except as stated in Rule 81. They should be construed, and administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”

But this is not the end of the story for Biomet….

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“Today’s dispute picks up where the April order left off.”

The Seed set… …to identify or not?

Members OnlyRecommind’s Patented Predictive

Coding Workflow Iterations: Iterations are multiple occurrences of category training that identify additional

documents that are substantively similar to seed documents. Documents identified as beingprobative of a category during human review using Predictive Analytics are used by the PredictiveCoding algorithm as further examples of the documents that belong in that category, enriching the

patterns the algorithm iteratively applies to the as-yet uncategorized documents in the corpus.The cycle is as follows:

• The probative seed documents are used as input for a categorization run

• The system identifies documents that are substantively similar to the seed set for such category and returns them in ranked order (from “most” like the seed set to “least” like the seed set)

• The case team reviews/codes the suggested documents, providing further calibration for the Axcelerate System; and

• All probative seed documents are then ‘trained’ upon, with the iterations continuing until no more algorithmically similar documents remain.

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HOW DO WE GET FROM

SEED SETS

TO

PROPORTIONALITY?

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Cooperation is key but the right kind of cooperation is necessary

• Cooperation +• Proportionality +• Technology

ONE CANNOT EXIST WITHOUT THE OTHER

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Old Rule 26(b)(1) – “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any

party’s claim or defense...”

versus

New Rule 26(b)(1) - “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of

the case…”

Can we be proportional if we don’t cooperate?but

What if we cooperate on the wrong things?

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And let’s not forget…FRCP 26(g)

&Model Rules of Professional Conduct

There is an ethical duty to understand the relationship between

cooperation, proportionality and technology

Lawyers must have “a basic understanding of the benefits and risks of relevant technology.”

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Questions?

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Please email us with any questions regarding these topics

Evan Benjamin Ebtrain@gmail.com

Nancy Regulanancy@nancybethlaw.com