Beware the Jabberwock and Bright Shiny Objects!

Beware the Jabberwock and Bright Shiny Objects!

Terry Dexter


I really haven’t seen such a commotion over the introduction of new ways of accomplishing the same goal since the introduction of dedicated “Word Processors” and “Word Processing Software”. The business was bombarded by new technology promising to reduce work loads, streamline business processes and, I heard this directly from one company president, ‘…eliminate that wasteful typing pool!’ Today, the legal sector is experiencing the very same phenomenon that business went through back in the early 1980s – Technology Assisted Review.

Now, I’m not a lawyer, merely an English major who has spent 30 years working in Information Technology. As such, I’ve seen slow adoption of new technology, wild successes and massive failures. One trend that is acknowledged but never really discussed is captured in this passage from a Rackspace Whitepaper written by John Engates and Robbie J. Wright1

But even though cloud computing may seem like the ultimate platform for traffic flexibility, the closed platforms that some providers offer can reduce an enterprise’s provider flexibility. The industry refers to this phenomenon as “lock-in.” By using a given hosting company’s proprietary system or an ISV’s proprietary virtualization platform, switching to another provider of platform often becomes so expensive, difficult and time-consuming that enterprises instead remain locked in to their existing providers, reducing bargaining power and, therefore, the ability to seek greater value.”

Granted the article does not even mention the legal sector or Predictive Coding, there is, however, much upon which to contemplate. The key words in this passage are ‘lock-in’ – an all too common phenomenon in IT. Everyone becomes so focused on a particular technology that when something new and better comes along, they are incapable of taking advantage. For example, see the Windows vs Apple vs Linux conundrum. Windows wins hands down since business selected that platform over the technologically superior Apple (I’ll reserve judgment on Linux Luddites for a later essay). This is what I fear regarding Predictive Coding in the legal space. Given the plethora of comments, articles, essays and the odd judicial ruling it appears the trend is coming true.

For example, consider Marisa Peacock’s CMS post from January 23, 2012:

There’s no doubt that predictive coding is the next big thing in e-Discovery. While predictive coding aims to code, organize, and prioritize entire sets of electronically stored information (ESI) according to their relation to discovery responsiveness, privilege and designated issues before and during the legal discovery process, many e-Discovery vendors have been working hard to offer products and service that offer predictive analytical solutions.2

Adding fuel to the fire is the famous Gartner Magic Quadrant Reports. The first such report discussing Electronic Discovery came out in 2011. Of the companies found in the “Leaders” quadrant, all were utilizing Predictive Coding (PC) technology. The 2012 “Leaders” quadrant saw small changes (mostly due to purchases by big corporations), but still dependent upon PC toolsets.

The danger I see is that if large corporations (i.e., Hewlett-Packard, Symantec, IBM, etc.) are jumping on the PC bandwagon and promoting their wares what may be in store for the future?

  1. How easy will it be for those same companies to adapt to newer ways or will the Technology Assisted Review (TAR) sector be permanently (or at least for a long spell) hampered by PC centric technology?
  2. Can the existing technology scale up as the volume of Electronically Stored Information (ESI) grows?
  3. Even if it can, what will be the true cost as Defendants shower Plaintiffs with gigabyte range ESI files?
  4. In what manner will the PC process be governed to produce relevant documents in a repeatable fashion?

I would gladly accept your thoughts on this subject. I, for one, do not to see this sector get distracted by the bright, shiny PC object and get locked into something that may become more of a monster.

“Beware the Jabberwock, my son!
The jaws that bite, the claws that catch!
Beware the Jubjub bird, and shun
The frumious Bandersnatch!””

1Unlocking the Enterprise Cloud – How the OpenstackTM Eliminates Cloud Lock-in, Rackspace White Paper downloaded from on 30 May 2012

2“Equivio, Clearwell Add Predictive Coding for e-Discovery #ltny”, Downloaded from on 30 May 2012

3 “JABBERWOCKY” by Lewis Carroll (from Through the Looking-Glass and What Alice Found There, 1872)


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