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eDiscovery Best Practices: Repairing a Corrupted Outlook PST File
 

We like to believe that there will never be any problems with the data that we preserve, collect and process for eDiscovery purposes.  Sometimes, however, critical data may be difficult or impossible to use.  Perhaps key files are password protected from being opened and the only way to open them is to “crack” the password.  Or, perhaps a key file may be corrupted.  If that file is an Outlook Personal Storage Table (PST) file, that file corruption could literally make tens of thousands of documents unavailable for discovery unless the file can be repaired.

I recently had a case where 40% of the collection was contained in 2 corrupt Outlook PST files.  Had we not been able to repair those files, we would have been unable to access nearly half of the collection that needed to be reviewed for responsiveness in the case.

Fortunately, there is a repair tool for Outlook designed to repair corrupted PST files.  It’s called SCANPST.EXE.  It’s an official repair tool that is included in Office 2010 (as well as Office 2007 before it).  As a very useful utility, you might think that SCANPST would be located in the Microsoft Office 2010 Tools folder within the Microsoft Office folder in Program files.  But, you’d be wrong.  Instead, you’ll have to open Windows Explorer and navigate to the C:Program FilesMicrosoft OfficeOffice14 folder (for Office 2010, at least) to find the SCANPST.EXE utility.

Double-click this file to open Microsoft Outlook Inbox Repair Tool.  The utility will prompt for the path and name of the PST file (with a Browse button to browse to the corrupted PST file).  There is also an Options button to enable you to log activity to a new log file, append to an existing log file or choose not to write to a log file.  Before you start, you’ll need to close Outlook and all mail-enabled applications. 

Once ready, press the Start button and the application will begin checking for errors. When the process is complete, it should indicate that it found errors on the corrupted PST file, along with a count of folders and items found in the file.  The utility will also provide a check box to make a backup of the scanned file before repairing.  ALWAYS make a backup – you never know what might happen during the repair process.  Click the Repair button when ready and the utility will hopefully repair the corrupted PST file.

If SCANPST.EXE fails to repair the file, then there are some third party utilities available that may succeed where SCANPST failed.  If all else fails, you can hire a data recovery expert, but that can get very expensive.  Hopefully, you don’t have to resort to that.

By repairing the PST file, you are technically changing the file, so if the PST file is discoverable, it will probably be necessary to disclose the corruption to opposing counsel and the intent to attempt to repair the file to avoid potential spoliation claims.

So, what do you think?  Have you encountered corrupted PST files in discovery?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Milestones: Our 500th Post!

One thing about being a daily blog is that the posts accumulate more quickly.  As a result, I’m happy to announce that today is our 500th post on eDiscoveryDaily!  In less than two years of existence!

When we launched on September 20, 2010, our goal was to be a daily resource for eDiscovery news and analysis and we have done our best to deliver on that goal.  During that time, we have published 144 posts on eDiscovery Case Law and have identified numerous cases related to Spoliation Claims and Sanctions.   We’ve covered every phase of the EDRM life cycle, including:

We’ve discussed key industry trends in Social Media Technology and Cloud Computing.  We’ve published a number of posts on eDiscovery best practices on topics ranging from Project Management to coordinating eDiscovery within Law Firm Departments to Searching and Outsourcing.  And, a lot more.  Every post we have published is still available on the site for your reference.

Comparing our first three months of existence with our most recent three months, we have seen traffic on our site grow an amazing 442%!  Our subscriber base has nearly doubled in the last year alone!

And, we have you to thank for that!  Thanks for making the eDiscoveryDaily blog a regular resource for your eDiscovery news and analysis!  We really appreciate the support!

I also want to extend a special thanks to Jane Gennarelli, who has provided some wonderful best practice post series on a variety of topics, ranging from project management to coordinating review teams to learning how to be a true eDiscovery consultant instead of an order taker.  Her contributions are always well received and appreciated by the readers – and also especially by me, since I get a day off!

We always end each post with a request: “Please share any comments you might have or if you’d like to know more about a particular topic.”  And, we mean it.  We want to cover the topics you want to hear about, so please let us know.

Tomorrow, we’ll be back with a new, original post.  In the meantime, feel free to click on any of the links above and peruse some of our 499 previous posts.  Maybe you missed some?  😉

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Best Practices: Assessing Your Data Before Meet and Confer Shouldn’t Be Expensive
 

So, you’re facing litigation and you need help from an outside provider to “get your ducks in a row” to understand how much data you have, how many documents have hits on key terms and estimate the costs to process, review and produce the data so that you’re in the best position to negotiate appropriate terms at the Rule 26(f) conference (aka, meet and confer).  But, how much does it cost to do all that?  It shouldn’t be expensive.  In fact, it could even be free.

Metadata Inventory

Once you’ve collected data from your custodians, it’s important to understand how much data you have for each custodian and how much data is stored on each media collected.  You should also be able to break the collection down by file type and by date range.  A provider should be able to process the data and provide a metadata inventory of the collected electronically stored information (ESI) that enables the inventory to be queried by:

  • Data source (hard drive, folder, or custodian)
  • Folder names and sizes
  • File names and sizes
  • Volume by file type
  • Date created and last date modified

When this done prior to the Rule 26(f) conference, it enables your legal team to intelligently negotiate at the conference by understanding the potential volume (and therefore potential cost) of including or excluding certain custodians, document types, or date ranges in the discovery order. 

Word Index of the Collection

Want to get a sense of how many documents mention each of the key players in the case?  Or, how many mention the key issues?  After a simple index of the data, a provider should be able to at least provide a consolidated report of all the words (not including stop words, of course), from all sources that includes number of occurrences for each word in the collected ESI (at least for files that contain embedded text).  This initial index won’t catch everything – image-only files and exception (e.g., corrupted or password protected) files won’t be included – but it will enable your legal team to intelligently negotiate at the meet and confer by understanding the potential volume (and therefore potential cost) of including or excluding certain key words in the discovery order.

eDiscovery Budget Worksheet

Loading the metadata inventory into an eDiscovery budget worksheet that includes standard performance data (such as document review production statistics) and projected billing rates and costs can provide a working eDiscovery project budget projection for the case.  This projection can enable your legal team to advise their client of projected costs of the case, negotiate cost sharing or cost burden arguments in the meet and confer, and create a better discovery production strategy.

It shouldn’t be expensive to prepare these items to develop an initial assessment of the case to prepare for the Rule 26(f) conference.  In fact, the company that I work for, CloudNine Discovery, provides these services for free.  But, regardless who you use, it’s important to assess your data before the meet and confer to enable your legal team to understand the potential costs and risks associated with the case and negotiate the best possible approach for your client.

So, what do you think?  What analysis and data assessment do you perform prior to the meet and confer?  Please share any comments you might have or if you’d like to know more about a particular topic.

P.S.: No ducks were harmed in the making of this blog post.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: The Da Silva Moore Case Has Class (Certification, That Is)
 

As noted in an article written by Mark Hamblett in Law Technology News, Judge Andrew Carter of the U.S. District Court for the Southern District of New York has granted conditional class certification in the Da Silva Moore v. Publicis Groupe & MSL Group case.

In this case, women employees of the advertising conglomerate Publicis Groupe and its U.S. subsidiary, MSL, have accused their employer of company-wide discrimination, pregnancy discrimination, and a practice of keeping women at entry-level positions with few opportunities for promotion.

Judge Carter concluded that “Plaintiffs have met their burden by making a modest factual showing to demonstrate that they and potential plaintiffs together were victims of a common policy or plan that violated the law. They submit sufficient information that because of a common pay scale, they were paid wages lower than the wages paid to men for the performance of substantially equal work. The information also reveals that Plaintiffs had similar responsibilities as other professionals with the same title. Defendants may disagree with Plaintiffs' contentions, but the Court cannot hold Plaintiffs to a higher standard simply because it is an EPA action rather an action brought under the FLSA.”

“Courts have conditionally certified classes where the plaintiffs have different job functions,” Judge Carter noted, indicating that “[p]laintiffs have to make a mere showing that they are similarly situated to themselves and the potential opt-in members and Plaintiffs here have accomplished their goal.”

This is just the latest development in this test case for the use of computer-assisted coding to search electronic documents for responsive discovery. On February 24, Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion making it likely the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case.  However, on March 13, District Court Judge Andrew L. Carter, Jr. granted plaintiffs’ request to submit additional briefing on their February 22 objections to the ruling.  In that briefing (filed on March 26), the plaintiffs claimed that the protocol approved for predictive coding “risks failing to capture a staggering 65% of the relevant documents in this case” and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind.

Then, on April 5, Judge Peck issued an order in response to Plaintiffs’ letter requesting his recusal, directing plaintiffs to indicate whether they would file a formal motion for recusal or ask the Court to consider the letter as the motion.  On April 13, (Friday the 13th, that is), the plaintiffs did just that, by formally requesting the recusal of Judge Peck (the defendants issued a response in opposition on April 30).  But, on April 25, Judge Carter issued an opinion and order in the case, upholding Judge Peck’s opinion approving computer-assisted review.

Not done, the plaintiffs filed an objection on May 9 to Judge Peck's rejection of their request to stay discovery pending the resolution of outstanding motions and objections (including the recusal motion, which has yet to be ruled on.  Then, on May 14, Judge Peck issued a stay, stopping defendant MSLGroup's production of electronically stored information.  Finally, on June 15, Judge Peck, in a 56 page opinion and order, denied the plaintiffs’ motion for recusal. 

So, what do you think?  What will happen in this case next?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: Scanning May No Longer Be Cool, But it’s Still Necessary
 

Frankly, I thought the fax machine would have been retired by now.  So many documents are generated electronically these days that I would have expected that most businesses would not only accept contracts and other documents via email but also no longer support fax receipt of those same documents.  But, many business not only still receive faxes, some still only accept faxes for key documents (or require you to hand deliver).  Progress is slow.

Likewise, most documents generated these days (as much as 99%) are never printed.  Hence, discovery has often become predominantly electronic discovery, as the documents are typically electronic.  Yet, I’m still surprised how many cases still have hard copy documents that require scanning and we still see a number of projects that have several boxes of documents that need to be scanned for discovery purposes.  If you still encounter hard copy documents in your discovery collections, here are some factors to consider if you’re going to scan them or hire a vendor to do so:

  • Document Preparation and Reassembly: To prepare documents for scanning, fasteners (staples, paper clips, etc.) must generally be removed.  Slip sheets are also often inserted in between documents with bar codes to tell the scanning software where the document breaks are – in some cases, the slip sheets are sophisticated enough to track master/attachment groups of documents. Reassembly involves returning the document collection to its original condition after scanning.
  • Deskew, Despeckle and Orientation Check: When scanning, you want to get the best quality scanned document possible not only because it’s easier and clearer to review, but also because it affects the quality of the Optical Character Recognition (OCR) process used to capture words for indexing and searching.  You don’t want the image to be skewed, or have a lot of speckles or be in the wrong orientation (e.g., portrait when it should be landscape).  The poorer quality of the image, the poorer the OCR.  Of course, some original documents are poor quality and difficult to read, so you can only do so much to make the resulting image readable.  But, you want to ensure the best quality possible.
  • Quality Assurance: In addition to any automated checks performed by the software, a manual double-check is also a good idea.  Any documents with issues (such as those described above) should be investigated to determine whether a second scan pass can yield better results.
  • Optical Character Recognition: It’s important to note that, without OCR, an image is just a picture and the words on the page cannot be searched.  Lack of OCR could cause you to miss important documents for discovery.  Because OCR is not an exact science, you want to use an application that supports “fuzzy” searching of OCR text to broaden search results to include other possible “hits” for the desired search terms.
  • Bates Numbering and Endorsing: Bates numbers used to be applied by a Bates “stamp”.  Later on, pre-printed Bates labels became popular.  Today, Bates numbers and endorsements (such as “Confidential” stamps) are typically applied electronically and are either “burned in” to the image (so that they cannot be removed) or “overlaid” (so that they can be removed – this is done in some cases when producing the same document in multiple cases with different Bates numbers).  It’s important to consider your requirements when selecting a method.
  • Single or Multi Page Images:  When creating TIFF files, you can create single page or multi-page TIFF files (multi-page files are usually one file per document).  Some review applications prefer one or the other, so it’s important to know your review software preferences.  PDF files are typically multi-page.

Those are just some of the considerations when scanning hard copy documents.  When using a vendor to scan documents, it’s important to understand how they address each of the areas above.

So, what do you think?  Do you still have hard copy documents to scan in most of your cases?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Judge Peck Denies Recusal Motion in Da Silva Moore
 

It’s been a few weeks since we heard anything from the Da Silva Moore case.  If you’ve been living under a rock the past few months, Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion in this case in February making it one of the first cases to accept the use of computer-assisted review of electronically stored information (“ESI”).  However, the plaintiffs objected to the ruling and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind and ultimately formally requested the recusal of Judge Peck.  For links to all of the recent events in the case that we’ve covered, click here.

Last Friday, in a 56 page opinion and order, Judge Peck denied the plaintiffs’ motion for recusal.  The opinion and order reviewed the past several contentious months and rejected the plaintiffs’ arguments for recusal in the following areas:

Participation in conferences discussing the use of predictive coding:

“I only spoke generally about computer-assisted review in comparison to other search techniques…The fact that my interest in and knowledge about predictive coding in general overlaps with issues in this case is not a basis for recusal.”

“To the extent plaintiffs are complaining about my general discussion at these CLE presentations about the use of predictive coding in general, those comments would not cause a reasonable objective observer to believe I was biased in this case. I did not say anything about predictive coding at these LegalTech and other CLE panels that I had not already said in in my Search,Forward article, i.e., that lawyers should consider using predictive coding in appropriate cases. My position was the same as plaintiffs’ consultant . . . . Both plaintiffs and defendants were proposing using predictive coding in this case.  I did not determine which party’s predictive coding protocol was appropriate in this case until the February 8, 2012 conference, after the panels about which plaintiffs complain.”

“There are probably fewer than a dozen federal judges nationally who regularly speak at ediscovery conferences. Plaintiffs' argument that a judge's public support for computer-assisted review is a recusable offense would preclude judges who know the most about ediscovery in general (and computer-assisted review in particular) from presiding over any case where the use of predictive coding was an option, or would preclude those judges from speaking at CLE programs. Plaintiffs' position also would discourage lawyers from participating in CLE programs with judges about ediscovery issues, for fear of subsequent motions to recuse the judge (or disqualify counsel).”

Relationship with defense counsel Ralph Losey:

“While I participated on two panels with defense counsel Losey, we never had any ex parte communication regarding this lawsuit. My preparation for and participation in ediscovery panels involved only ediscovery generally and the general subject of computer-assisted review. Losey's affidavit makes clear that we have never spoken about this case, and I confirm that. During the panel discussions (and preparation sessions), there was absolutely no discussion of the details of the predictive coding protocol involved in this case or with regard to what a predicative coding protocol should look like in any case. Plaintiffs' assertion that speaking on an educational panel with counsel creates an appearance of impropriety is undermined by Canon 4 of the Judicial Code of Conduct, which encourages judges to participate in such activities.”

Relationship with Recommind, the selected vendor in the case:

“The panels in which I participated are distinguishable. First, I was a speaker at educational conferences, not an audience member. Second, the conferences were not one-sided, but concerned ediscovery issues including search methods in general. Third, while Recommind was one of thirty-nine sponsors and one of 186 exhibitors contributing to LegalTech's revenue, I had no part in approving the sponsors or exhibitors (i.e., funding for LegalTech) and received no expense reimbursement or teaching fees from Recommind or LegalTech, as opposed to those companies that sponsored the panels on which I spoke. Fourth, there was no "pre-screening" of MSL's case or ediscovery protocol; the panel discussions only covered the subject of computer-assisted review in general.”

Perhaps it is no surprise that Judge Peck denied the recusal motion.  Now, the question is: will District Court Judge Andrew L. Carter, Jr. weigh in?

So, what do you think?  Should Judge Peck recuse himself in this case or does he provide an effective argument that recusal is unwarranted?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: Where Does the Money Go? RAND Provides Some Answers
 

The RAND Corporation, a nonprofit research and analysis institution recently published a new 159 page report related to understanding eDiscovery costs entitled Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery by Nicholas M. Pace and Laura Zakaras that has some interesting findings and recommendations.  To obtain either a paperback copy or download a free eBook of the report, click here.

For the study, the authors requested case-study data from eight Fortune 200 companies and obtained data for 57 large-volume eDiscovery productions (from both traditional lawsuits and regulatory investigations) as well as information from extensive interviews with key legal personnel from the participating companies.  Here are some of the key findings from the research:

  • Review Makes Up the Largest Percentage of eDiscovery Production Costs: By a whopping amount, the major cost component in their cases was the review of documents for relevance, responsiveness, and privilege (typically about 73 percent). Collection, on the other hand, only constituted about 8 percent of expenditures for the cases in the study, while processing costs constituted about 19 percent in the cases.  It costs about $14,000 to review each gigabyte and $20,000 in total production costs for each gigabyte (click here for a previous study on per gigabyte costs).  Review costs would have to be reduced by about 75% in order to make those costs comparable to processing, the next highest component.
  • Outside Counsel Makes Up the Largest Percentage of eDiscovery Expenditures: Again, by a whopping amount, the major cost component was expenditures for outside counsel services, which constituted about 70 percent of total eDiscovery production costs.  Vendor expenditures were around 26 percent.  Internal expenditures, even with adjustments made for underreporting, were generally around 4 percent of the total.  So, almost all eDiscovery expenditures are outsourced in one way or another.
  • If Conducted in the Traditional Manner, Review Costs Are Difficult to Reduce Significantly: Rates currently paid to “project attorneys during large-scale reviews in the US may well have bottomed out” and foreign review teams are often not a viable option due to “issues related to information security, oversight, maintaining attorney-client privilege, and logistics”.  Increasing the rate of review is also limited as, “[g]iven the trade-off between reading speed and comprehension…it is unrealistic to expect much room for improvement in the rates of unassisted human review”.  The study also notes that techniques for grouping documents, such as near-duplicate detection and clustering, while helpful, are “not the answer”.
  • Computer-Categorized Document Review Techniques May Be a Solution: Techniques such as predictive coding have the potential of reducing the review hours by about 75% with about the same level of consistency, resulting in review costs of less than $2,000 and total production costs of less than $7,000.  However, “lack of clear signals from the bench” that the techniques are defensible and lack of confidence by litigants that the techniques are reliable enough to reliably identify the majority of responsive documents and privileged documents are barriers to wide-scale adoption.

Not surprisingly, the recommendations included taking “the bold step of using, publicly and transparently, computer-categorized document review techniques” for large-scale eDiscovery efforts.

So, what do you think?  Are you surprised by the cost numbers?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Trends: For Da Silva Moore Addicts
 

I am getting prepared to head for sunny Los Angeles for LegalTech West Coast shortly, so today I’m getting by with a little help from my friends.  Tomorrow and Wednesday, I’ll be covering the show.  It wouldn’t be a week in eDiscovery without some tidbits about the Da Silva Moore case, so here are some other sources of information and perspectives about the eDiscovery case of the year (so far).  But, first, let’s recap.

Several weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012), Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion making it likely the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case.  However, on March 13, District Court Judge Andrew L. Carter, Jr. granted plaintiffs’ request to submit additional briefing on their February 22 objections to the ruling.  In that briefing (filed on March 26), the plaintiffs claimed that the protocol approved for predictive coding “risks failing to capture a staggering 65% of the relevant documents in this case” and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind.

Then, on April 5, Judge Peck issued an order in response to Plaintiffs’ letter requesting his recusal, directing plaintiffs to indicate whether they would file a formal motion for recusal or ask the Court to consider the letter as the motion.  On April 13, (Friday the 13th, that is), the plaintiffs did just that, by formally requesting the recusal of Judge Peck (the defendants issued a response in opposition on April 30).  But, on April 25, Judge Carter issued an opinion and order in the case, upholding Judge Peck’s opinion approving computer-assisted review.

Not done, the plaintiffs filed an objection on May 9 to Judge Peck's rejection of their request to stay discovery pending the resolution of outstanding motions and objections (including the recusal motion, which has yet to be ruled on.  Then, last Monday, Judge Peck issued a stay, stopping defendant MSLGroup's production of electronically stored information.

More News

And, there’s even more news.  As Sean Doherty of Law Technology News reports, last Monday, Judge Peck denied an amicus curiae (i.e., friend-of-the-court) brief filed in support of the plaintiffs' motion for recusal.  For more on the filing and Judge Peck’s denial of the motion, click here.

Summary of Filings

Rob Robinson of ComplexD has provided a thorough summary of filings in a single PDF file.  He provides a listing of the filings, a Scribd plug-in viewer of the file – all 1,320 pages(!), so be patient as the page takes a little time to load – and a link to download the PDF file.  The ability to search through the entire case of filings for key issues and terms is well worth it.  Thanks, Rob!

Da Silva Moore and the Role of ACEDS

Also, Sharon Nelson of the Ride The Lightning blog (and a previous thought leader interviewee on this blog) has provided a very detailed blog post regarding the in depth investigation that the Association of Certified E-Discovery Specialists® (ACEDS™) has conducted on the case, including requesting financial disclosures for Judge Peck for 2008, 2009, 2010 and 2011 (for items including for “honoraria” and “teaching fees.”).  She wonders why “a certification body would want to be so heavily involved in an investigation of a judge in a very controversial case” and offers some possible thoughts as to why.  A very interesting read!

So, what do you think?  Are you “maxed out” on Da Silva Moore coverage yet?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Judge Peck Stays Defendant’s Production in Da Silva Moore
 

Yesterday, we discussed the latest event in the eDiscovery case of the year – the defendant’s response opposing the plaintiff’s motion for recusal.  I thought today we would discuss the plaintiffs’ latest objection – to United States District Court Magistrate Judge Andrew J. Peck's rejection of their request to stay discovery pending the resolution of outstanding motions and objections.  However, news in this case happens quickly.

In a short, one-page order on Monday, Judge Peck issued a stay, stopping defendant MSLGroup's production of electronically stored information in Da Silva Moore v. Publicis Groupe & MSL Group, (Case No. 11-CV-1279).

Here is the content of the order:

“On reconsideration, for the reasons stated at today's conference (see transcript), the Court has granted plaintiffs' request to stay MSL's production of ESI, pending Judge Carter's decision on plaintiffs' motions for collective action certification and to amend their complaint.  Defendants have consented to the stay. Jurisdictional discovery regarding Publicis, and discovery between plaintiff and MSL unrelated to MSL's ESI production, are not stayed.

Plaintiffs' May 9, 2012 objections to my prior denial of the stay (Dkt. No. 190) are moot.”

That’s it – short and sweet (to the plaintiffs, at least).

This came after the plaintiffs filed an objection last Wednesday (May 9) to Judge Peck's rejection of their request to stay discovery pending the resolution of outstanding motions and objections. Those motions include a ruling on the plaintiffs' objections to Judge Peck's dismissal of the plaintiffs' issues associated with discovery with predictive coding, the plaintiffs' motion for Peck to recuse himself from the case and motions for conditional certification of collective action and for leave to file a second amended complaint.

For a brief recap and links to prior events in this highly contentious case, yesterday’s blog post provides background since Judge Peck’s order approving computer-assisted review.

More to come, I’m sure.

So, what do you think?  Will computer-assisted review be derailed in this case after all?  Was Judge Peck right to stay production?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine Discovery. eDiscoveryDaily is made available by CloudNine Discovery solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscoveryDaily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

eDiscovery Case Law: Defendant Responds to Plaintiffs’ Motion for Recusal in Da Silva Moore
 

Geez, you take a week or so to cover some different topics and a few things happen in the most talked about eDiscovery case of the year.  Time to catch up!  Today, we’ll talk about the response of the defendant MSLGroup Americas to the plaintiffs’ motion for recusal in the Da Silva Moore case.  Tomorrow, we will discuss the plaintiffs’ latest objection – to Magistrate Judge Andrew J. Peck's rejection of their request to stay discovery pending the resolution of outstanding motions and objections.  But, first, a quick recap.

Several weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012), Judge Peck of the U.S. District Court for the Southern District of New York issued an opinion making it likely the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case.  However, on March 13, District Court Judge Andrew L. Carter, Jr. granted plaintiffs’ request to submit additional briefing on their February 22 objections to the ruling.  In that briefing (filed on March 26), the plaintiffs claimed that the protocol approved for predictive coding “risks failing to capture a staggering 65% of the relevant documents in this case” and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind.

Then, on April 5, Judge Peck issued an order in response to Plaintiffs’ letter requesting his recusal, directing plaintiffs to indicate whether they would file a formal motion for recusal or ask the Court to consider the letter as the motion.  On April 13, (Friday the 13th, that is), the plaintiffs did just that, by formally requesting the recusal of Judge Peck.  But, on April 25, Judge Carter issued an opinion and order in the case, upholding Judge Peck’s opinion approving computer-assisted review.

As for the motion for recusal, that’s still pending.  On Monday, April 30, the defendant filed a response (not surprisingly) opposing the motion for recusal.  In its Memorandum of Law in Opposition to Plaintiffs’ Motion for Recusal or Disqualification, the defendants noted the following:

  • Plaintiffs Agreed to the Use of Predictive Coding: Among the arguments here, the defendants noted that, after prior discussions regarding predictive coding, on January 3, the “[p]laintiffs submitted to the Court their proposed version of the ESI Protocol, which relied on the use of predictive coding. Similarly, during the January 4, 2012 conference itself, Plaintiffs, through their e-discovery vendor, DOAR, confirmed not only that Plaintiffs had agreed to the use of predictive coding, but also that Plaintiffs agreed with some of the details of the search methodology, including the “confidence levels” proposed by MSL.”
  • It Was Well Known that Judge Peck Was a Leader In eDiscovery Before The Case Was Assigned to Him: The defendants referenced, among other things, that Judge Peck’s October 2011 article, Search, Forward discussed “computer-assisted coding,” and that Judge Peck stated in the article: “Until there is a judicial decision approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval.”
  • Ralph Losey Had No Ex Parte Contact with Judge Peck: The defendants noted that their expert, Ralph Losey, “has never discussed this case with Judge Peck” and that his “mere appearance” at seminars and conferences “does not warrant disqualification of all judges who also appear.”

As a result, the defendants argued that the court should deny plaintiffs motion for recusal because:

  • Judge Peck’s “Well-Known Expertise in and Ongoing Discourse on the Topic of Predictive Coding Are Not Grounds for His Disqualification”;
  • His “Professional Relationship with Ralph Losey Does Not Mandate Disqualification”;
  • His “Comments, Both In and Out of the Courtroom, Do Not Warrant Recusal”; and
  • His “Citation to Articles in his February 24, 2012 Opinion Was Proper”.

For details on these arguments, click the link to the Memorandum above.  Judge Carter has yet to rule on the motion for recusal.

So, what do you think?  Did the defendants make an effective argument or should Judge Peck be recused?  Please share any comments you might have or if you’d like to know more about a particular topic.

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