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Leveraging Technology to Manage Big Data in Antitrust | JD Supra
On 27 January, 2021, TransPerfect Legal Solutions (TLS) held the second day of the inaugural EU / UK Competition Regulation Virtual Conference. Day one focused on the changing regulatory landscape. Day two turned to the advent of big data and how technology is a vital tool in the arsenal of the modern competition practitioner.
Sasha Toussaint, Director in TLS’s London office, was joined by Guillaume Aubron, Counsel at Darrois Villey Maillot Brochier; Greg Bonné, Senior Associate at Latham & Watkins; Bryant Isbell, the Managing Director of Global eDiscovery and Data Advisory at Baker McKenzie and TransPerfect’s very own Katie Perekslis, Vice President of E-Discovery Project Management.
Whether it’s for merger control, dawn raids or cartel investigations, competition proceedings require the interrogation of significant amounts of documentation production in short timelines. In the big data era, budgetary concerns as well as compliance itself often turn on the scope of the information available and timelines imposed on its production.
Clients, lawyers and regulators must fight fire with fire.
Across the board, we are seeing both clients and regulators demand the use of technology. For clients, applying technology drives down the cost associated with these proceedings and limits the amount of information required for production. For regulators, it allows them to see key material faster and using fewer resources. Furthermore, there is empiric evidence (in mainstream litigation versus competition work) that technology can be more consistent and accurate than human review.1
In France, legal technology is not used as widely as in the US or UK. However, French lawyers see clear benefits to using technology in merger control and dawn raids. In the latter, technology needs to be deployed early, as the FCA seizes entire mail boxes before extending a fairly short time frame for lawyers to complete a privilege review ahead of their own review. Speed, therefore, is really of the essence. Unlike many other jurisdictions, there are no requirements for internal document production on the filing form itself and that really only comes into play later on in proceedings. However, it is accepted that as data volumes continue to grow, technology will be a necessity to ascertain risk for these matters, regardless of the regulatory burden.
In the UK, the technology-agnostic CMA is increasingly making use of its formal information-gathering powers. Those powers are also being used at varying stages during the process – including working to establish evidence for an alternative counterfactual or a theory of harm claim. Parties similarly use technology at the “back end” regularly to formulate their strategy in response to these growing requests.
The constant across both jurisdictions (and likely others) is the use of technology to speed up the privilege review. Automating the workflow in its entirety is risky, but the technology can significantly accelerate human review.
What is considered responsive plays a large role in the documents produced in these proceedings. These decisions will have an effect on how and what data is collected and shared. Whilst the CMA retains significant control on the determination of responsiveness (described in more detail below), the European Commission takes a more balanced, collaborative approach, often engaging with lawyers and technologists.
TLS has assisted on these negotiations first hand and rather than simply paying lip service, we (together with outside counsel) have materially impacted search and responsiveness parameters. In a recent RFI, we analyzed the resulting set of responsive documents based on the Commission’s proposed search terms and determined the terms were overly board. When we presented these metrics to the Commission, together with the methodology used, they were amenable to refining the search terms and data pool.
Ultimately, the regulators are amenable to changing the scope of their requests as long as the law firm and vendor work with the regulators to provide transparency and prove their methodology is logical and defensible.
If law firms can continue, as above, to guide regulators with quantitative data and defensible methodology, there will be a shift in the way data is gathered, culled and reviewed. Deploying technology and analytics is beneficial to all parties involved, particularly given its ability to better manage the never-ending increase in data volumes and sources as well as time constraints in competition proceedings.
The CMA, as compared to the DOJ, FTC or the Commission, can and is asking for more extensive information earlier in the process.
As law firms and their clients lean on the benefits of legal technology, so too do the regulators. They are becoming increasingly more engaged in the process, which has procedural and legal implications.
In English proceedings, e-discovery technology has been a common feature for many years but only recently in merger control. The main question focuses less on the “if” and more the “when.” The CMA is increasingly looking to gather evidence, which encourages parties to lean on the guidance and the CMA as they gather the information required. This can include internal documents and even emails and instant messaging chats. Similar to train of inquiry investigations, once they have a handle on the data they are able to issue further requests. These can be topic and custodian specific, or wider using search terms. Unsurprisingly, the CMA is actively recruiting legal technology professionals to help analyze the data that comes in to better inform its requests for information.
This is likely to cause significant delays at pre-notification resulting in a knock-on effect for the entire timetable, as was the case in Amazon’s acquisition of 16% in Deliveroo.
Regulators, particularly the CMA, are throwing their weight around when it comes to the issue of “responsiveness.” They believe they have the power determine what is and is not responsive through various search strategies. However, this poses an issue around personally identifiable information, documents being produced that fall out of the scope of the investigation and the general feeling that this type of information-gathering request is a regulator-sponsored fishing expedition.
In general, document production in competition proceedings has become more of an iterative process and the CMA expects to be involved. As a lawyer or e-discovery professional, you can anticipate engaging with your e-discovery and forensic counterparts at the CMA every step of the way.
Whether leveraging basic technology like search terms and email threading or more complex technology like TAR 1.0 and Continuous Active Learning (CAL), legal teams and technologists must ensure proper processes are followed.
As technology advances, it is easy to see the benefits of using advanced analytics, TAR 1.0 or TAR 2.0 (Continuous Active Learning) in data-heavy matters. Regulators do not dictate what type of technology is used, but they are leaning on technologists and law firms to understand the what, how and why.
TAR 1.0 (Technology-Assisted Review) was one of the first AI-based workflows. It is an iterative process where technologists develop an initial training set of documents and a subject matter expert reviews that data before stopping review to run the algorithm that will predict the relevance of the remainder of the documents. Additional documents may be added to the training set based on the richness of the data set, and a separate control set that is statistically representative of the data set is then reviewed by the same subject matter expert and used to validate the results, producing metrics such as precision, recall, depth of recall and F1 score – very much a start-stop-start-stop process.
CAL is a newer iteration of TAR and prioritizes the data in real time based on the coding decisions of reviewers. As with linear review, a lawyer begins tagging documents for responsiveness. The difference is the technology is working in the background, in real time, to pull other documents that are likely similar to the previously tagged “responsive” documents until the reviewers reach a point of diminishing returns.
In TLS’s experience with merger control projects where the goal is compliance to produce a large quantity of relevant documents in a short period, there is a tendency to stick with TAR 1.0 because it is not cost or time effective to put human eyes on as many documents as you would with CAL. The key in this process, however, is to make sure the subject matter expert is available to review the training and control sets to ensure consistent and accurate results because we apply their review decisions for a smaller population to the larger document set. Unlike in a linear or CAL review, a few miscoded or inconsistently coded documents can have detrimental effects on both the quality of the review and the time it takes to reach stabilization. Due to that limitation and a need to put human eyes on all relevant documents for fact finding, TAR 2.0 still tends to be the more widely used workflow in general litigations and arbitrations given its accessibility. With either of these workflows, law firms must produce a clear methodology on actions taken, including validation process. Some of these methods include:
- Precision test – captures what percentage of documents pulled are actually relevant
- Recall test – determines if any documents were missed in the data set
- Elusion test – similar to recall and looks to see if any documents eluded the system
In TLS experience, regulators tend to focus on achieving high recall and are less concerned with low precision (AKA overly producing documents). But precision is very important to clients, as they do not want more data to go to the regulators than necessary, particularly if data is sensitive in nature.
All panellists agree that it is critical to produce very clear, step-by-step methodology before work has begun, both in privilege and responsiveness reviews. If the work is completed but the method is not approved, the law firm will be required to start over, which can be problematic given the tight deadlines associated with competition work.
Transparency is key in assuring the regulators that law firms have met their requirements and provided the documents required to make their decisions. As long as law firms and technologists are being defensible and reasonable about the methods, the regulators will typically approve the use of technology to work with them and with their clients.
What does the future hold?
There is a clear appetite from clients and regulators to adopt the use of legal technology in competition proceedings. Law firms and litigation support providers will continue to spearhead this movement and are constantly looking at new tools and workflows to manage big data in a defensible and efficient manner.
Law firms will leverage analytics and investigations tools where time is of the essence – the first to apply for leniency or immunity or to assess risk. Getting a handle on what their clients have early will be key.
In time, the FCA, CMA and Commission may collaborate and follow certain DOJ practices given its experience with larger data sets, deal flow and technology. And it will be in parties’ best interests to work alongside them to design a process that works for everyone.
Data is inescapable. Clients, lawyers and regulators continue to play an ever-changing game of catch-up to leverage technology. The procedural and legal considerations grow and change as data volumes increase and data sources diversify, and it is imperative to lean on these tools to provide the best outcome for all parties involved.
You can watch the full recording of this panel here.
1 Pyrrho Investments Ltd v MWB Property Ltd: [1] [2016] EWHC 25. Paragraph 31
In mid-December, a Vermont Health Connect user was logging in when the names of two strangers popped up in the newly created account.
The individual, who was trying to sign up for health insurance, deleted the information that had suddenly appeared.
“It was super unsettling to think that someone is filing in my account with my information,” the person, whose name is redacted in records, wrote in a complaint to the Department of Vermont Health Access. “Just seems like the whole thing needs a big overhaul.”
It was one of 10 instances between November and February when Vermont Health Connect users reported logging to find someone else’s information on their account.
The data breaches included names of other applicants and, in some cases, their children’s names, birth dates, citizenship information, annual income, health care plans, and once, the last four digits of a Social Security number, according to nearly 900 pages of public records obtained by VTDigger. On Dec. 22, the department’s staff shut down the site to try to diagnose the problem.
While officials say the glitches have been resolved, it’s the most recent mishap for a system that has historically been plagued by security and technical issues. The breaches could be even more widespread: Administrators of Vermont Health Connect can’t tell if other, similar breaches went unreported.
“We don’t know what we don’t know,” said Jon Rajewski, a managing director at the cybersecurity response company Stroz Friedberg. Regardless of whether there are legal ramifications for the incidents, they should be taken “very seriously,” he said.
“If my data was being stored on a website that was personal, — maybe it contains names or my Social Security number, like my status of insurance… — I would expect that website to secure it and keep it safe,” he said.
“I wouldn’t want someone else to access my personal information.”
Andrea De La Bruere, executive director of the Agency of Human Services, called the data breaches “unfortunate.” But she downplayed the severity of the issues. Between November and December, 75,000 people visited the Vermont Health Connect website for a total of 330,000 page views, she said. The 10 incidents? “It’s a very uncommon thing to have happen,” she said.
De La Bruere said the issue was fixed on Feb. 17, and users had reported no similar problems since. The information that was shared was not protected health information, she added, and the breaches didn’t violate the Health Insurance Portability and Accountability Act, or HIPAA.
“No matter what the law says technically, whether it’s HIPAA-related or just one’s personal information, it’s really concerning,” said Health Care Advocate Mike Fisher.
The timing of the issue is less than ideal, he added. Thousands of Vermonters will be logging into Vermont Health Connect in the coming weeks to take advantage of discounts granted by the American Rescue Plan. “It’s super important that people can access the system, and that it’s safe and secure,” Fisher said.
A ‘major issue‘
The issues first arose on Nov, 12, when at least two Vermonters logged in and found information about another user, according to records obtained by VTDigger.
Department of Vermont Health Access workers flagged it as a “major issue” for their boss, Kristine Fortier, a business application support specialist for the department.
Similar incidents also occurred on Nov. 17 and 18, and later on multiple days in December.
Department of Vermont Health Access staff members appeared alarmed at the issues, and IT staff escalated the tickets to “URGENT.”
“YIKES,” wrote a staff member Brittney Richardson. While the people affected were notified, the data breaches were never made public.
State workers pressed OptumInsights, a national health care tech company that hosts and manages Vermont Health Connect, for answers. The state has contracted with the company since 2014. It has paid about $11 million a year for the past four years for maintenance and operations, with more added in “discretionary funds.”
Optum appeared unable to figure out the glitch. “It is hard to find root cause of issue,” wrote Yogi Singh, service delivery manager for Optum on Dec. 10. Optum representatives referred comments on the issues to the state.
By Dec. 14, Grant Steffens, IT manager for the department, raised the alarm. “I’m concerned on the growing number of these reports,” he wrote in an email to Optum.
The company halted the creation of new accounts on Dec, 14, and shut down the site entirely on Dec, 22 to install a temporary fix. “It’s a very complex interplay of many many pieces of software on the back end,” said Darin Prail, agency director of digital services. The complexity made it challenging to identify the problem, and to fix it without introducing any new issues, he said.
In spite of the fixes, a caller reported a similar incident on Jan. 13.
On Feb. 8, a mother logged in to find that she could see her daughter’s information. When she logged into her daughter’s account, the insurance information had been replaced by her own.
“Very weird,” the mother wrote in an emailed complaint.
Optum completed a permanent fix on Feb. 17, according to Prail. Vermont Health Connect has not had a problem since, he said.
Prail said the state had reported the issues to the Centers for Medicaid and Medicare Services as required, and had undergone a regular audit in February that had no findings. The state “persistently pressured Optum to determine the root cause and correct the issue expeditiously but at the same time, cautiously, so as to not introduce additional issues/problems,” he wrote in an email to VTDigger.
“We take reported issues like this very seriously,” he said.
A history of glitches
The state’s health exchange has been replete with problems, including significant security issues and privacy violations, since it was built in 2012 at a cost of $200 million.
The state fired its first contractor, CGI Technology Systems, in 2014. A subcontractor, Exeter, went out of business in 2015. Optum took over for CGI, and continued to provide maintenance and tech support for the system.
In 2018, when Vermont Health Connect was less than 6 years old, a report dubbed the exchange outdated and “obsolete.”
Officials reported similar privacy breaches in 2013, when Vermonters saw other people’s information.
An auditor’s report in 2016 found a slew of cybersecurity flaws, and officials raised concerns again during a 2018 email breach.
It wasn’t the first time that Vermont Health Connect users had been able to view other people’s personal information. Three times since October 2019, individuals had logged in to see another individual’s insurance documents. Prail attributed those incidents to human error, not to system glitch; a staff member uploaded documents to the wrong site, he said.
In spite of the issues, Prail said he and other state officials have been happy with Optum. After years of technical challenges with Vermont Health Connect, “Optum has really picked up the ball and improved it and been running it pretty well,” he said.
Glitches are inevitable, he added, and Optum has addressed them quickly. “They took a really difficult-to-manage site and made it work pretty well,” he said. “Optum is generally quite responsive to any issues we have.”
“I find any privacy breach to be concerning,” said Scott Carbee, chief information security officer for the state. He noted that the state uses “hundreds of software systems.” “While the scope of the breaches can be mitigated, true prevention is a difficult task,” he wrote in an email to VTDigger.
Optum spokesperson Gwen Moore Holliday referred comments to the state, but said the company was “honored” to work with Vermont Health Connect “to support the health care needs of Vermont residents.”
Prail said the Agency of Human Services had no plans to halt its contract with the company. “I don’t have a complaint about Optum,” he said. “They took a really difficult-to-manage site and made it work pretty well.”
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Deciphering the Gaps: Health Officer, Latinx Providers Talk COVID Disparities | Lost Coast Outpost
A Paso a Paso vehicle loaded with produce and ready to make the delivery rounds to its local Latinx and Hispanic clients. Submitted photo.
###
In
an effort to address persistent disparities in COVID-19’s impacts
on the local Latinx community, Humboldt County Public Health Officer
Ian Hoffman recently met with LatinoNet, a network of service
providers like Open Door Community Health Clinics, Paso a Paso,
Promotores, the Humboldt County Office of Education and Public Health
that are dedicated to advocating for a healthier Latinx community in
Humboldt County.
The
meeting, Hoffman’s first public discussion with the providers,
focused on what can be done to address the disparities — which
exist both in COVID-19 case rates and vaccination efforts and mirror
statewide and national trends — in the county’s Latinx
population.
In
July, Humboldt County’s COVID-19 dashboard highlighted the
disproportionate COVID-19 case rates in the local Latinx and Hispanic
communities, noting they accounted for 22 percent of COVID-19 cases
while only making up 12 percent of the population. The disparity has
only grown since and as of April 9, Humboldt County Latinx residents
made up 25 percent of positive COVID-19 cases to date.
County
vaccine data, meanwhile, has seen a similar trend, with Latinx county
residents falling behind on receiving their COVID-19 shots. According
to the Public Health dashboard, only about 10 percent of Humboldt’s
Latinx and Hispanic population are fully vaccinated, compared to 19
percent of the general population.
“We
know that there is a disproportionate effect of COVID-19 in this
community and that’s why, from our standpoint in Public Health, and
also personally, as a physician taking care of this community for a
long time, it’s important that we address this,” Hoffman said.
Lara
Weiss, a Public Health deputy branch director who also attended
Friday’s meeting, said LatinoNet invited Hoffman to speak with the
group and offer an update on the pandemic and Public Health’s
efforts to provide equitable vaccine clinics. But Hoffman said the
meeting was also an opportunity for him to hear from the providers
about what barriers and gaps in care and outreach they were seeing.
Hoffman
began his presentation talking about his background working with
different Latinx communities in Santa Rosa and the Bay Area with
organizations like La Clinica de la Raza in Oakland and Kaiser
Permanente in San Francisco. He said he learned to give culturally
sensitive care to members of the Latinx, Spanish-speaking community,
which he said would transfer into a better understanding of how
Public Health approaches culturally competent health policies.
Hoffman
talked about Public Health’s rollout of COVID-19 vaccine clinics,
acknowledging the signup process has been confusing at times, with a
shortfall of vaccine doses, exceedingly high demand and eligibility
limitations. But Hoffman said Public Health’s goal is to ensure
vaccine equitability among those in the Latinx community and
guarantee that any Latinx resident seeking a COVID-19 vaccine feels
comfortable and confident before, during and after their appointment.
“We’ve
taken some steps at Public Health to make sure that when a
Spanish-speaking person needs a vaccine, that they feel comfortable
and confident that their needs will be met and, most importantly,
[provide] Spanish-language information,” Hoffman said.
Public
Health is working on a few new interventions, including sponsoring
California Department of Public Health’s “Let’s Get to
ImmUnity” integrated media campaign with both English and Spanish
ads on GFN channel 3, as well as planned mass vaccination
events in more rural areas of the county with the help from Open
Door.
And
now that eligibility is open to all residents age 16 and older,
Hoffman emphasized the importance of organizations serving the Latinx
community helping to spread information on the vaccine rollout and
the switch to the state’s My Turn website (www.myturn.ca.gov). But
the message Hoffman kept repeating was that the county’s Joint
Information Center (441-5000) is standing by and ready to take any
questions, including those in Spanish, about the vaccine and
vaccination clinics.
During
the meeting, however, it became clear there may be a disconnect
between county Public Health and service providers looking to direct
clients and patients to accurate information about COVID-19 and
vaccines in Spanish.
“I
continue to hear that there’s not clear and correct information in
Spanish that people know where to access,” LatinoNet board member
Michelle Postman said, alluding to a survey by Jorge Matias, another
LatinoNet board member, that found most Spanish-speaking local
residents didn’t know where to go for accurate COVID-19
information. “I feel like we try and we don’t think that we’re
doing that but we don’t know where the gap is, and I also know that
Public Health is really stretched, there’s only so much we can do,
and so I’m just curious if there’s one thing, one magical thing
that can happen. Would it be like showcasing Latin[x] leaders in the
community on commercials like, ‘Hey I’ve got my shot and this is
working,’ or would it be to have a website? What would be the
magical thing that you might spend time on to make things better if
we had the capacity?”
Postman’s
comments led to a discussion about the best way to get information to
the Spanish-speaking Latinx community, prompting Hoffman to stress
that the JIC is dedicated to putting out a clear, conscious message
in English and Spanish.
“All
of the materials on [the JIC website, social media pages] have been
vetted by Spanish speakers,” he said. “They’re scientifically
accurate. They try to meet the cultural sensitivity that we talked
about, as well. I would say that if we’re going to put anything out
there, that’s the central message.”
Hoffman
urged the groups at the meeting to use the resources on the Humboldt
Health alert website and promoted by the Joint Information Center and
push them out to the Spanish-speaking community. And if there’s one
phone number the groups get to their clients in the coming weeks, he
said it should be the JIC’s: 441-5000.
In
an email sent to the Journal,
Matias, in his
capacity as a LatinoNet board member, said his survey found most
Latinx and Hispanic residents didn’t feel they had clear and
correct information in Spanish about who can and can’t obtain the
COVID-19 vaccine and that they felt they didn’t have a specified
place to call to find more information in their language. Many,
Matias said, didn’t feel had enough information about how effective
vaccines are.
Many
people, Matias added, are afraid of costs, side effects and needing
more medical interventions due to possible side effects, while others
worry they aren’t eligible to receive the vaccine because of their
documentation status. But Hoffman confirmed during the meeting that
the only documentation those seeking a vaccine will need is any type
of form with a name that matches the name on the appointment or a
parental consent form for those 16 and 17 years old.
These,
Hoffman added, are the types of questions that could be answered by
the JIC.
The
county JIC has been actively translating information into Spanish,
including uploading social media posts in Spanish, but it seems they
have yet to amplify those messages to community providers and
advocacy groups in an effort to get that information to community
members who may not follow county social media accounts or can’t
navigate the county’s website.
Matias
also told the Journalthat there’s a lot of information that spreads through social media
that confuses Latinx and Hispanic residents, including misinformation
and conspiracy theories, which was addressed during the meeting
between LatinoNet and Hoffman.
If
Public Health hears of any misinformation or any disinformation
spreading throughout the community, Hoffman said it would address it
and correct it immediately. But he also cautioned there’s a balance
between correcting and amplifying.
Hoffman
then asked attendees about the types of misinformation they were
hearing and someone mentioned a conspiracy theory about the COVID-19
vaccine causing future fertility issues.
“That’s
one of the biggest pieces of misinformation that’s got a stronghold
in a lot of communities,” Hoffman said. “There’s absolutely no
evidence that this vaccine has any effect on fertility.”
Nationwide,
there have been reports of vaccine hesitancy in communities of color
because of historical acts of genocide in healthcare settings, which
was also mentioned by attendee Maria Ortega.
“I
feel like all of these organizations and clinics and community
organizations have a responsibility to be sensitive about that
(fertility) issue and not dismiss anybody, because they’re valid
concerns, especially historically and worldwide there’s been actual
efforts to change communities of color and their population impacts,”
Ortega said. “Just be mindful about where they’re coming
from.”
Hoffman
agreed with Ortega about being mindful and understanding of where
those concerns take root, noting the importance of recognizing the
impact of historical events and communities’ lived experiences in
providing culturally sensitive care.
“These
are difficult things to navigate exactly, and I think if those are
the barriers that we’re really seeing out there, they need to be
addressed, obviously,” Hoffman said. “But I’m not sure at this
point exactly what all the barriers are … My hope is that, mostly,
that gap is because of eligibility and lack of vaccine and that, as
we open it up more broadly like we are doing right now, and we have
that language ability … that we get those messages out there.”
The
reasons for the gaps in vaccine administration and infection rates
may become more clear as the county moves into the expanded phase of
its vaccination rollout but, presently, Hoffman urged providers and
their clients and patients to look to the JIC for Spanish-language
information about the COVID-19 virus and vaccines.
“Thank
you so much for inviting me and talking with me,” Hoffman said in
Spanish, wrapping up the meeting. “I hope that we can do this again
soon.”
###
Iridian
Casarez (she/her) is a staff writer with the Journal.
Reach her at 442-1400, extension 317, or
iridian@northcoastjournal.com.
Follow her on Twitter @IridianCasarez.
The
Community Voices Coalition is a project funded by Humboldt Area
Foundation and Wild Rivers Community Foundation to support local
journalism. This story was produced by the North
Coast Journal
newsroom
with full editorial independence and control.
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