If you talk frankly with those in the predictive coding business, it won’t be long until they lament, “Our beans are so magical, we just can’t fathom why more customers aren’t planting them.”  They insist that lawyers (or corporations or judges) don’t “get it.”  That is, those who hold the purse strings or call the shots don’t appreciate how much money can be saved, how much better the result can be or how much tedious review can be delegated to tireless technology tools.

It’s a common sentiment expressed by all in the business of selling technology assisted review; yet despite their shared frustration, I see no indication that they have laid down their arms and formed an industry association geared to jointly advancing shared goals and resolving common problems  The result has been widespread confusion about the technology and more heat than light when it comes to litigants having the confidence to not only use the emerging technologies but also to deploy them in ways that don’t trade one broken system for another.

It would be much easier to educate the bench and bar from a place of consensus; and cheaper, too.  As the small cadre of providers claw for their piece of a nascent market, they sow seeds of doubt.  The statistical precepts are identical.  The underlying technologies are substantially similar (although the particulars of the algorithms differ).  The tools have more in common than sellers care to admit.  Certainly, consumers think them much the same.

When the dairy industry wanted to float all boats, they asked, simply, “Got Milk?”  They didn’t ask “Got Milk from from Holstein-Friesian cattle milked in herringbone parlors and sterilized by plate heat exchangers?

How is it a “Got Milk?” message that didn’t promote the interests of one supplier over another acquired a 90% awareness among U.S. consumers?  Could it be that members of milk boards put their common needs above their individual market share?

“But,” the sellers reply, “milk is a fungible good, and e-discovery services aren’t!”

Hmmm, Really?  Does it seem to you, dear reader, that consumers of e-discovery services seek highly-differentiated offerings, not commoditized services?  Are no suppliers being shut out by low bidders touting meat cleaver culling at rock-bottom per gigabyte pricing when technology-assisted approaches would be so much better?

It’s time to wake up and smell the TAR.  Predictive coding vendors (and others) need to band together, establish practical guidelines and reasonable standards, jointly promote education and research and see where a little shared effort can build a market big enough for all–not to fix prices or divvy up spoils, but to direct energy and creativity to secure a whole greater than the sum of its parts and to prevent quality from becoming the red-headed stepchild of EDD.

So, Bob, Craig, Arnaud, Quin, Herb, Steve, Ian, Jim, Amir, Warwick, Nicholas, and perhaps even you, too, Gordon, Maura, Bill and Karl.   Don’t wait for Sedona, EDRM, EDI or (heaven help us) one of the EDD lobbying groups to call the tune!  Form your own industry organization now.  Check your egos at the door, keep it simple, don’t fight over who will run it, have an organizational meeting, identify common interests, hire a part-time admin and write some modest checks.  The payback to you will be great, and the benefit to the justice system greater still.

And, no, there’s nothing in it for me.  I just think it’s a good idea.  Apologies to those whose names I omitted in my desire to avoid sounding like the start of a Mickey Mouse Club episode.

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