2025年07月25日
2020年02月27日配信
Are you sure you're okay with that vendor?
What should a Japanese company do if it is involved in an international lawsuit and has to choose a discovery vendor?
The "worst thing you can do" when choosing a discovery vendor is to not select a discovery vendor that quotes a low price in an attempt to keep costs as low as possible (be careful!). The "worst thing" to do when choosing a discovery vendor is to select a discovery vendor that quotes a low price in an attempt to keep costs as low as possible.
Low unit price ≠ low total cost.
If you choose a vendor based on price alone, without checking the quality of the work, you may end up paying more for the work than you anticipated because the work cannot be done to a high degree of accuracy within the quoted range, and unexpected costs may be added. In other words, a low unit price is not synonymous with a low total cost.
Initial response is important
International litigation is also a race against time. In particular, a delay in initial response can result in a different outcome for a lawsuit that was not originally against your company, or in having to pay a settlement that you did not originally have to pay.
The "initial response" primarily includes attorney selection, discovery vendor selection, and litigation hold (i.e., protection of documents and data that are the subject of evidence). Here we will discuss vendor selection and attorney selection.
As explained in " Introduction to Discovery (1/7): Don't Leave the Selection of Discovery Vendors to Others! As explained in "Introduction to Discovery (1/7): Don't Leave the Selection of Discovery Vendors to Others", ideally, the selection of a vendor should not be left to the attorney. The simplest and most effective way to achieve this is to always include a clause in the contract with the attorney stating that the selection of the discovery vendor will be decided by the company's headquarters. This will prevent the attorney from deciding on a vendor without listening to the company's wishes in order to protect his or her own vested interests.
In addition, when deciding on a vendor, the following questions should be asked at a minimum
(1) Whether or not the vendor is capable of using predirective coding
Predictive coding means that the review process is performed by computer.
To explain it in more detail, it is an "automatic file weighting function" that can automatically classify unexamined related files based on a certain sample data evening.
Traditionally, reviews have been performed visually by humans, but humans can become fatigued after long hours of work, resulting in reduced efficiency and inaccuracy. Accuracy and work speed vary from reviewer to reviewer: reviewer A may be able to check a file with an average accuracy of 80%, but reviewer B may only be able to check it with an accuracy of 60%, and the same reviewer may be less accurate in the evening than the first reviewer in the morning.
Computers are tireless.
In this respect, machines are tireless. Moreover, they are fast and accurate. It is said to be over 90% accurate in classifying data, such as assigning a level of importance to each document. Depending on the task, a single Predictive Coding Machine is said to be able to achieve speed and accuracy comparable to 4,000 lawyers.
The use of this predirective coding will certainly reduce the cost of discovery. Vendors who are reluctant to use it may not have the technology, or they may not be willing to adopt it because it would eliminate the "umami" of doing the expensive work in the review process. Such vendors should be eliminated from the list of candidates.
(2) Japanese language capability
The next important factor is the availability of Japanese-language support. For vendors operating in Japan, the availability of Japanese-language support is a prerequisite, and here we would like to confirm the quality of such support.
First of all, it is important that not only the machine but also the person in charge can support Japanese. It is not enough to simply say that "the system is equipped with a system that can analyze and review documents in Japanese.
Definition of Japanese language capability:
The term "Japanese language capable" here means that a person who can use Japanese as his/her native language is involved as a project manager and even follows up with the company. If the person in charge on the vendor side does not understand Japanese, it will be difficult for the vendor to notice any unusual problems that occur onsite, even if the communication with the client company can be done in English. For example, if a garbled character is occurring, but the vendor cannot distinguish the garbled character from the Japanese kanji, it is possible that the project will proceed without dealing with the garbled character until the next step in the process.
The difference can also be seen in the selection of keywords and phrases for keyword searches. The accumulation of such small differences often leads to large differences in delivery time and cost.
Scope and Accuracy of Japanese Language Support
Next, let's look at the scope and accuracy of Japanese language support.
If consistent Japanese-language support is not available from data collection through review, it will be necessary to translate all documents prior to review, which will delay the review and make it more expensive. This must certainly be avoided, as translating documents prior to review may make it impossible to find evidentiary material.
The same can also be said about "Predictive Coding" mentioned in (1). Some overseas vendors may be able to provide predirective coding, but they do not support Japanese. It is a good idea to carefully check whether or not the vendor you are seeking a quote from possesses predirective coding technology that supports Japanese.
Even if the vendor claims to be able to handle Japanese in all areas, the accuracy of the estimates may vary from vendor to vendor, so it is recommended that you ask for a demonstration or check the recall rate or precision rate (see below) to confirm the accuracy of the estimates. We recommend that you ask for a demonstration or check the recall rate or precision rate (see below) to confirm the accuracy.
What is Predictive Coding?
Predictive Coding = Predictive Coding
Artificial Intelligence Technology / Advanced Analytical Capabilities of Text Mining
▼ Mechanism
1. a company's legal staff or lawyers scrutinize a small number of documents to determine whether or not they are relevant to the lawsuit
2. artificial intelligence learns the teacher data and sorts all files to be reviewed according to the criteria determined by the legal representative or lawyer. (Scoring)
Documents judged to be relevant to the lawsuit are assigned a higher score.
Depending on the teacher data to be trained, the target (specialized knowledge or collective knowledge) to be trained can be selected.
(3) Can recall and precision rates be disclosed?
One indicator of the accuracy of preditive coding is the "recall rate" and "precision rate.
Recall rate (reproduction rate ) is the percentage of documents that should be extracted as search results that were actually correctly determined. It is an indicator of the comprehensiveness of the system and is the capture rate of "Relevant," a value that indicates highly relevant material. Its formula is expressed as follows
Recall Rate = Number of files correctly determined ÷ (Number of files correctly determined + Number of files missed)
In contrast, the Precision Rate (Conformance Rate) is the percentage of truly correct documents extracted in the system's results. It is an indicator of the accuracy of the system and represents the accuracy of the "relevant" decisions. Its formula is expressed as follows
Precision Rate = Number of files judged to be correct ÷ (Number of files judged to be correct + Number of files misjudged)
These rates are very complex, and it may be difficult for the general public to understand them, but a proper discovery vendor should be able to accumulate figures extracted from samples and provide examples of past use.
Be wary, however, of vendors who are vague about these numbers or who do not extract data.
Recall and Precision Rates
What is Recall Rate (Recall Rate)?
An index that indicates how much of the sentences extracted as "relevant" by Predictive Coding are covered by the exact data.
What is the Precision Rate (Fitness Rate)?
A measure of how well the sentences extracted by Predictive Coding match the exact data.
Three questions can be used as a guide to judge an attorney
In some cases, Japanese companies that are not accustomed to international litigation may find it a hurdle to negotiate directly with discovery vendors. In other cases, it may be difficult for the lawyer to object to the selection of the vendor because the lawyer is an old friend of the company's executives or otherwise has a strong relationship of trust with the company.
Even in such cases, the three questions above should always be posed to the attorney. A lawyer who says, "Don't worry! I'll take care of it" is very suspicious. It is more important to keep asking questions until you get specific answers. If talking to the attorney does not get you anywhere, you should negotiate to be allowed to speak directly with the vendor.
If the attorney stubbornly refuses to do so, you may want to carefully check the competence and responsiveness of the vendor behind it, as well as review the attorney itself. In other words, the yardstick for vendor selection can also serve as a yardstick for attorney selection.
Previous：Discovery Primer (1/7): Don't Leave Discovery Vendor Selection to Others!
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