Electronic Discovery Archives

Document Reviewers are People Too, Even in Canada, eh?: eDiscovery Trends

March 25, 2015

A couple of weeks ago, a $384 million class action was filed in Canada against professional services firm Deloitte LLP on behalf of hundreds of lawyers working at a document-review company it acquired last year. Even in Canadian dollars, that’s a lot.

As reported on by Canadian Lawyer’s blog Legal Feeds (Document review workers launch class action against Deloitte), on March 9, Canadian document review attorney Shireen Sondhi filed suit against Deloitte, which acquired ATD Legal Services in 2014, alleging document review attorneys were improperly classified as independent contractors (thereby exempt from protection under the Employment Standards Act).

Sondhi claims she and her colleagues were for years denied statutory labor protections, such as notice of termination. She also claims that they were also deprived of entitlements such as vacation pay and overtime – with even bathroom breaks docked from their overall compensation.

Despite the absence of statutory protections, the plaintiff alleges she and her class members agreed to the onerous conditions because they could ill afford to make demands of their employer amid Canada’s cutthroat legal jobs market.

“For many young lawyers, saddled with staggering student debt and desperate not to leave the field of law, document review is a last resort,” the statement of claim reads. “Deloitte is one of only a few document review companies in Ontario, and for many Class Members, represents their sole source of income.”

“These workers were supervised in Deloitte’s offices, they didn’t provide their own tools, or control their own schedules,” said plaintiff’s counsel Andrew Monkhouse in a statement. “It is simple logic that a lawyer, hired into a non-legal job, would be eligible for every protection under the law that non-lawyers are afforded.”

The conflict between Sondhi and her employer arose after Deloitte acquired ATD in January 2014. The claim alleges that, upon Deloitte’s acquisition, the new parent company imposed terms on document review workers that suggested a tacit acknowledgment of potential liability.

Deloitte required document reviewers to contract to an intermediary, Procom Consultants Group (also named in the suit), which then began withholding employment insurance (EI) and Canada Pension Plan (CPP) deductions. The claim alleges this intermediary served to minimize Deloitte’s liability.

Procom then charged Deloitte a fee amounting to $3 per hour – a charge passed on to the document reviewers, who received no benefit from the arrangement. All told, the fee, along with the EI and CPP deductions, reduced the take-home pay of document reviewers from $50 per hour to just over $40 per hour.

A major part of the dispute is whether document review is considered legal work. As reported in Law Times earlier this month, Sondhi says an amended Deloitte contract later took out a clause that deemed the document review work to be non-legal but described it as a “data processing and computer services” function that still doesn’t require LawPRO liability insurance. At that point, Sondhi says she sent an e-mail to the management team expressing the concerns she still had.

“I got this e-mail back from an employee at Procom saying, ‘Deloitte is not prepared to change the contract any further. Either you sign the contract or you consider your relationship terminated. Don’t come into the office tomorrow morning,’” she says. “So I wrote back and said, ‘I’m not comfortable with this. You haven’t answered my question, and I will not be signing the contract.’”

“I was shocked that Deloitte went as far as terminating me for vocalizing opposition to the Procom contract,” said Sondhi in a statement. “The entire situation reinforced to me just how great the power disparity was between Deloitte and I.”

So, what do you think? Does the class of document reviewers have a case? Should the work that document reviewers perform be considered legal work? 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. eDiscoveryDaily is made available by CloudNine 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.

Court Agrees with Plaintiffs, Orders Provision for Qualitative Sampling of Disputed Search Terms: eDiscovery Case Law

March 24, 2015

In the case In Re: Lithium Ion Batteries Antitrust Litigation, No. 13-MD-02420 YGR (DMR) (N.D. Cal., Feb. 24, 2015), California Magistrate Judge Donna M. Ryu ordered the defendants to comply with the plaintiffs’ proposed qualitative sampling process for keyword search terms, citing DaSilva Moore that keywords “often are overinclusive”.

Case Background

In this multi-district litigation (MDL), the court ordered the parties to meet and confer to negotiate a protocol for the use of search terms in December 2014. The parties agreed upon an iterative process for the development and testing of search terms, summarized as follows:

The producing/responding party will develop an initial list of proposed search terms and provide those terms to the requesting party;
Within 30 days, the requesting party may propose modifications to the list of terms or provide additional terms (up to 125 additional terms or modifications); and
Upon receipt of any additional terms or modifications, the producing/responding party will evaluate the terms, and
Run all additional/modified terms upon which the parties can agree and review the results of those searches for responsiveness, privilege, and necessary redactions, or
For those additional/modified terms to which the producing/responding party objects on the basis of overbreadth or identification of a disproportionate number of irrelevant documents, that party will provide the requesting party with certain quantitative metrics and meet and confer to determine whether the parties can agree on modifications to such terms. Among other things, the quantitative metrics include the number of documents returned by a search term and the nature and type of irrelevant documents that the search term returns. In the event the parties are unable to reach agreement regarding additional/modified search terms, the parties may file a joint letter regarding the dispute.

The parties requested the court’s guidance on a single remaining issue regarding their search term protocol: the steps the parties needed to take if they could not resolve a disagreement over a particular term. The plaintiff wanted the defendant to conduct a randomized qualitative sampling of documents retrieved by searching for any disputed terms, and to then allow the plaintiff to review the resulting documents following a privilege review.

The defendants objected to the proposed sampling provision “solely on the grounds that it will provide Plaintiffs with access to non-responsive, irrelevant documents that will be generated through the procedure.” They argued that the provision was unnecessary due to the detailed quantitative information that they agreed to produce regarding disputed search terms and because “there has been no showing that any Defendant’s production is incomplete.” The plaintiffs countered “that the proposed provision incorporates ESI best practices, including those embodied in materials developed by this Court” and contended that “the best way to refine searches and eliminate unhelpful search terms is to analyze a random sample of documents, including irrelevant ones, to modify the search in an effort to improve precision.”

Judge’s Opinion

With regard to the plaintiffs’ argument, Judge Ryu stated simply, “The court agrees. The point of random sampling is to eliminate irrelevant documents from the group identified by a computerized search and focus the parties’ search on relevant documents only. As the court noted in Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012), a problem with keywords ‘is that they often are overinclusive, that is, they find responsive documents but also large numbers of irrelevant documents.’”

Noting, however, that the defendants “raise a valid concern that the sampling protocol will result in the production of irrelevant information”, Judge Ryu ordered the following parameters to alleviate that concern:

At the hearing, the plaintiffs agreed that the defendants “may review the random qualitative sample and remove any irrelevant document(s) from the sample for any reason, provided that they replace the document(s) with an equal number of randomly generated document(s)”;
The parties also agreed that the defendants would conduct the qualitative sampling only after they had exhausted an agreed-upon quantitative evaluation process;
Judge Ryu ordered that irrelevant documents in the sample “shall be used only for the purpose of resolving disputes regarding search terms in this action, and for no other purpose in this litigation or in any other litigation” and that those irrelevant documents, as well as any attorney notes regarding the sample, “shall be destroyed within fourteen days of resolution of the search term dispute”;
Only one attorney from each law firm designated co-lead class counsel for Direct Purchaser Plaintiffs and Indirect Purchaser Plaintiffs (total of six attorneys) would be allowed to review the random sample;
The plaintiffs could invoke the random sampling process with respect to no more than five search terms per defendant group.

So, what do you think? Was the court right to order random sampling? 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Who is Investing in eDiscovery Companies?: eDiscovery Trends

March 23, 2015

As we have reported in the past, the eDiscovery industry is still growing at an impressive rate. One recent market report estimated that the global eDiscovery market is forecast to reach $15.65 billion by 2020. So, who is investing in the eDiscovery industry?

Leave it to Rob Robinson, once again, to compile some useful stats for us.

In a recent story on his excellent Complex Discovery blog titled A Short List of eDiscovery Investors, Rob (who last year put together a “mashup” of industry estimates for us) once again puts together one of his useful lists for us, providing a short list of 30+ investment organizations (actually 32, but who’s counting) that have funded eDiscovery-related companies between 2009 and today. This list is based on Rob’s “non-comprehensive” list of industry mergers, acquisitions and investment tracking that he has tracked for over 12 years (which we previously covered here and here). His list provides the name of the investing organization, their website URL and an example company in which they’ve invested.

The investor company names include words like “venture”, “capital”, “partners”, “management” and “group”. Sounds like investors to me. They have invested in companies from AccessData and Advanced Discovery to Xact and Zovy. Some eDiscovery providers have received investments from more than one investment firm.

So, if you want to see some of the companies that are helping the fuel the growth of the eDiscovery industry, check out Rob’s story here.

So, what do you think? Can you think of other growth indicators in the eDiscovery industry? Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily Is Fifty Four! (Months Old, That Is)

March 20, 2015

Let’s party! Fifty four months ago today, eDiscovery Daily was launched. It’s hard to believe that it has been 4 1/2 years since our first three posts debuted on our first day, September 20, 2010. 1,129 posts later, a lot has happened in the industry that we’ve covered. And, yes we’re still crazy after all these years for committing to a daily post each business day, but we’re still rolling along and providing daily eDiscovery news and analysis while still covering our day jobs.

Twice a year, we like to take a look back at some of the important stories and topics during that time. So, here are just a few of the posts over the last six months you may have missed. Enjoy!

We covered a new self-assessment resource from EDRM that helps you determine how mature your organization is in handling eDiscovery.
Microsoft acquired Equivio and everyone speculated what that means for eDiscovery.
We showed you the pitfalls of having text overlaid Bates numbers on PDF files.
Did you know that every 2 days we create as much information as we did from the beginning of time until 2003? That tidbit and other BIG Data facts can be found here.
If you want an automated, easy and inexpensive way to process your data, check this out.
More companies may have data breach response plans and teams in place, but data breaches are still increasing in frequency.
Looking for your old tweets on Twitter? You might get someone else’s tweets instead!
Want to catch up on all 68 cases we covered in 2014? Here is your chance.
Looking for devices with relevant ESI? Don’t forget the fitbit.
Want our thoughts about this year’s LegalTech® New York? Want to know what exhibitors thought of the show? You’re welcome. 🙂
For the fifth year in a row, we delivered interviews with key eDiscovery thought leaders on key industry trends.
Judge Andrew J. Peck revisited the Da Silva Moore case with a key opinion in a new case.
By the way, we got a new look this year! And, partnered with the leading standards organization in eDiscovery!

Thanks for your support! Our subscriber base and daily views are bigger than ever! And, we owe it all to you! Thanks for the interest you’ve shown in the topics! We will do our best to continue to provide interesting and useful eDiscovery news and analysis. And, as always, 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. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

Plaintiff’s Motion to Quash Subpoena of Text Messages Granted by Court: eDiscovery Case Law

March 19, 2015

In Burdette v. Panola County, No. 3:13CV286-MPM-SAA (N.D. Miss. February 4, 2015), Mississippi Magistrate Judge S. Allan Alexander granted the plaintiff’s Motion to Quash Subpoena where the defendant subpoenaed the plaintiff’s text messages and call log records from his mobile provider.

Case Background

In this employment case, the defendant issued a subpoena to AT&T Subpoena Compliance Center for production of “[a]ny and all calls and text messages made from and received from [the plaintiff’s phone number] in the custody and control of AT&T for the dates of April 23, 2012, beginning 1:00 p.m. through May 27, 2012.” The defendants stated that the subpoena was necessary because plaintiff had avoided producing ESI that is relevant to the claims at issue and failed to maintain either the phone upon which he recorded a conversation the day of his discharge or the computer to which he later transferred the phone recording.

The plaintiff contended that the subpoena was overly broad, harassing, irrelevant, and potentially sought information protected by the attorney client privilege, as the requested text messages would undoubtedly include texts to and from his family members and possibly to and from his attorney. The plaintiff also noted that the period of time for which the text messages and calls were sought extended twenty days after the plaintiff was terminated.

Judge’s Opinion

Judge Alexander noted that the defendants “have offered no explanation for why these text messages and phone calls are relevant and has not agreed to limit the production of them in any way”. Despite the fact that the plaintiff failed to maintain the phone and computer, Judge Alexander determined that “neither of those two facts support the request for all of plaintiff’s text messages and phone calls before and for three weeks after his termination. If defendants desire to seek a spoliation instruction, they are permitted to do so, but defendants have failed to convince the undersigned that production of text messages and phone call logs will resolve any issue relating to the recorded conversation. The court will not permit irrelevant discovery that appears to be more harassing than productive.”

“Weighing the factors set out by the Fifth Circuit for quashing a subpoena, the relevance factor clearly weighs against production of the phone records”, stated Judge Alexander, finding that “the breadth of the request is entirely too wide even if a valid reason for the request had been established.” As a result, he granted the plaintiff’s request to quash the defendant’s subpoena.

So, what do you think? Was the defendants’ request overbroad? Or did they have a valid reason for the subpoena, given that the plaintiff failed to produce relevant ESI? Please share any comments you might have or if you’d like to know more about a particular topic.

When Blogging Interferes with Your Day Job, Which Do You Pick?: eDiscovery Best Practices

March 18, 2015

Though I write a daily blog, believe it or not, I do have a “day job”. I’m Vice President of Professional Services at CloudNine, and I also coordinate our marketing and software rollouts. Sometimes, I’m able to write my blog post during the work day; other times, I have to wait until the evening to do so, possibly as late as 8 or 9 PM, depending on my workload for that day. When blogging interferes with your “day job”, it can be difficult to do both.

I’m not sure that this was directly stated, but this conflict between day job and blogging may have been a factor in the discontinuation of IT-Lex last year and the scaling back of Ralph Losey’s excellent e-Discovery Team® blog from weekly to monthly a few weeks ago. It’s not always easy to keep a blog going when you have a busy career too.

In her excellent blog Litigation Support Guru, Amy Bowser-Rollins (see our profile of her from last year here) wrestled with that very dilemma. As she noted in her most recent post I Quit My Litigation Support Job, she has juggled four “jobs”, including: 1) Working full-time in a litigation support role at a law firm in Washington DC, 2) Working in a management position for a non-profit called Women in eDiscovery, 3) Teaching several courses in the Georgetown University Paralegal Studies program, and 4) Mentoring individuals interested in a litigation support career through her Litigation Support Guru blog.

As you can imagine, it was a struggle for Amy to do it all. Anyone can tell you that litigation support is a full-time job that can, at times, involve evening and weekend work. Not to mention that she was also dealing with a three hour daily commute to and from Washington DC. Though she noted that her work on the blog was most fulfilling (“I love helping others realize their dreams. I love mentoring others.”), her day job (and commute) was cutting into time to mentor others.

So, she quit her day job.

After having taken a sabbatical back in 2005, Amy decided to take another one now from her litigation support job. More power to her and, hopefully, that means more excellent blog posts to come!

As for me, last week was especially busy. I provided consulting assistance in different projects to clients ranging from search best practices to retrieve particular documents to review, de-duplication of potentially privileged documents in order to prepare a privilege log and identification of previously reviewed and classified documents in one collection to exclude them from review in another collection (to save review costs and ensure consistency). I managed to do all of that in four days, as I was off Friday for my birthday. 🙂 It’s not always easy, though, to attend to my day job and keep up with the blog.

When my boss at CloudNine approached me with a completed design and URL for our blog (which, of course, was called eDiscovery Daily), I initially balked at the idea of doing a daily blog. As you can imagine, I was a bit daunted by the effort involved of having to identify and write about different topics four to five days per week. Ultimately, nearly four and a half years later, it has proven to be personally rewarding for me as it forces me to keep up to date on trends and key case law in the industry (efforts which would otherwise go languishing when client projects heat up). And, my “day job” has also enabled me to share some of my experiences to you through best practices that I’ve learned through actual experiences with clients. I hope you have found our blog to be as useful as I have found it rewarding to write and I plan to continue to write it (and keep my “day job”) as long as I can.

I’m not going to go so far as to say “hug a blogger today”, but I think it’s important to recognize that most of them do this in their spare time, aside from their “day job”. I, for one, am grateful to all that do so in legal technology.

So, what do you think? Which blogs do you read? 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. eDiscovery Daily is made available by CloudNine 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.

Court Upholds Review of Taxable Costs by Clerk, Awards over $57,000: eDiscovery Case Law

March 17, 2015

In Comprehensive Addiction Treatment Center, Inc. v. Leslea, No. 11-cv-03417-CMA-MJW (D. Colo. Feb. 13, 2015), Colorado District Judge Christine M. Arguello denied the plaintiffs’ motion to review Clerk’s Taxing of Costs Under F.R.C.P. 54(D)(1), upholding the award by the Clerk of the Court of $57,873.61 in taxable costs.

Case Background

On January 31, 2013, the defendants’ Motion to Dismiss on qualified immunity and for lack of subject matter jurisdiction was granted by the court. After prevailing on summary judgment, the defendants filed a Proposed Bill of Costs seeking costs totaling $58,037.01. At a telephonic hearing, the District Court Clerk awarded $57,873.61 of the requested taxable costs. On March 5, 2014, the plaintiffs filed an instant Motion seeking a review of the Clerk’s determination concerning the taxed amount of $55,649.98 for the defendants to contract with a private consulting company, Cyopsis, to retrieve and convert ESI into a retrievable format to produce information that was requested by the plaintiffs.

The plaintiffs contended that the Court should reduce the taxing of costs entered by the Clerk from $57,873.61 to $2,387.03 because retrieving, restoring and converting data does not constitute “copying” under 28 U.S.C. § 1920(4). The defendants disagreed, arguing that “[p]roduction costs in collecting, scanning, reviewing, and preparing documents are necessary expenditures that are made for the purpose of advancing the discovery phase of the case and as such, are taxable.”

Judge’s Opinion

Judge Arguello stated that “Federal Rule of Civil Procedure 54 provides that ‘[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.’” She also pointed out that “courts have recognized that 28 U.S.C. § 1920(4) includes e-discovery related costs”, citing three cases.

As for this case, Judge Arguello observed that “[b]ecause of the complexities and time-intensive efforts anticipated in responding to Plaintiffs’ requests for documents, the parties entered into three consecutive tolling agreements” and also that “Defendants wrote to Plaintiffs’ counsel three times describing the difficulties and complexities encountered in retrieving and restoring the ESI”. “At no time during this period did Plaintiffs initiate discussion aimed at limiting the scope of their request for information or take other measures to limit the costs of the endeavor”, she noted, indicating that based on the ESI production, “Plaintiffs filed a new Complaint including several allegations not included in the version filed in 2010”.

As a result, Judge Arguello found that the defendants’ costs related to the ESI are expenses enumerated in 28 U.S.C. § 1920(4). She found that “The ESI expenses were not merely for the convenience of the parties nor were they materials produced solely for discovery as Plaintiffs filed a new Complaint that included information gleaned from the ESI. Thus, the ESI expenses were reasonably necessary for use in the case. Indeed, Plaintiffs were aware of the monumental effort to retrieve and convert the data into a retrievable format in response to their Interrogatories and Requests for Production. The costs incurred by Defendants, the prevailing party, in responding to Plaintiffs’ requests are expenses that are shifted to Plaintiffs, the losing party. Indeed, Plaintiffs own litigation choices and aggressive course of discovery necessarily resulted in ‘heightened’ defense costs.”

Therefore, Judge Arguello denied the plaintiffs’ motion and upheld the award by the Clerk of the Court of $57,873.61 in taxable costs.

It’s not exactly a pot o’ gold, but it’s nothing to sneeze at either. 🙂 Happy St. Patrick’s Day!

So, what do you think? Is recovery of eDiscovery costs under 28 U.S.C. § 1920(4) too open to interpretation? Please share any comments you might have or if you’d like to know more about a particular topic.

A New Processing Standards Guide from EDRM: eDiscovery Best Practices

March 16, 2015

When dealing with electronic data, some attorneys think that since the files are already electronic, how hard can they be to load? Unfortunately, it’s not as simple as that. To be useable in discovery, electronic files need to be processed and good processing requires a sound process. Leave it to EDRM to offer a new standards guide to establish a set of basic standards for processing various types of data for eDiscovery.

Let’s face it, at some point in nearly every eDiscovery life cycle, it is necessary to “process” data from an electronic storage device into a database so the data may be used in subsequent e-discovery steps. So, last Tuesday, EDRM released its new “software agnostic”* EDRM Data Processing Standards Guide, which is designed to help eDiscovery professionals ask the right questions and be knowledgeable about the tools available (*while the guide is meant to be software-agnostic, it does draw heavily on examples from kCura’s system, Relativity).

Written by experienced practitioners, the guide addresses considerations and concerns that arise when one processes data from an electronic storage device into an eDiscovery database and is intended to be a resource for anyone who would like to use the processing stage of eDiscovery to streamline review and improve analysis of information in the database. It covers everything from virus protection, container files, deduplication and de-NISTing to HASH values, time zone considerations, passwords and exception handling. It also identifies key metadata fields necessary for searching, sorting and production purposes and a basic glossary of terms. And, as processing has numerous potential permutations, the guide identifies some of the topics that aren’t yet covered in the “Potential Future Topics” section, such as language identification, EML files (Outlook Express) and processing Lotus Notes email.

The draft guide is available here and is open for public comment until tomorrow, March 17 (extra credit for submitting your comments in green ink – just kidding!), after which time input will be reviewed and considered for incorporation before the new guide is finalized. If you’re used to simply turning over your electronic files to a vendor for processing and want to know what that vendor is actually doing with them, it’s a good guide to help you understand the steps involved in making your data usable for review.

So, what do you think? Have you read the guide yet? If so, did you find it useful? Please share any comments you might have or if you’d like to know more about a particular topic.

Organizations are Increasing Their Investment in Legal Data Analytics, According to New Survey: eDiscovery Trends

March 13, 2015

According to a new survey of more than 125 legal technology professionals released by Huron Legal earlier this week, 68% of respondents expect their organizations’ investment in legal data analytics to increase in the next two years.

As noted in their announcement, there are, however, several challenges to effectively implement legal data analytics identified by the respondents, including:

Securing buy-in from senior leadership on the value of analytics (37% of respondents identified as the biggest challenge);
Quality of data (22%);
Cost of implementing data analytics effectively (23%),
Lack of accessible data (9%);
Threat to the practice of law (9%).

Also, 64% of respondents said that the legal industry is behind other industries when it comes to data analytics.

When asked about the one or more areas where data analytics is currently being applied in their organization, respondents replied as follows:

64% of respondents indicated that data analytics is currently being applied in eDiscovery;
A third (33%) noted litigation management (i.e. case strategy, staffing);
Nearly a quarter (24%) indicated law department management (i.e., matter budgeting, legal project management);
Almost a third (29%) selected information governance;
17% pointed to outside counsel/law firm management (i.e., staffing, etc.);
16% noted rate/fee negotiation;
10% stated M&A evaluation.

Only about 10% of respondents said that data analytics is not being applied at all within their organization. Not surprisingly, 45% of respondents identified cost management and savings as the biggest benefit of data analytics in the legal industry.

“It is clear that the legal industry is starting to recognize the power of data analytics, as evidenced by the burgeoning use of emerging legal technology and the willingness to increase investment in analytics,” said Nathalie Hofman, managing director at Huron Legal. “However, in order to realize analytics’ full potential, legal professionals at all levels must be educated about how to best to use them. Analytics can inform decisions in a number of areas, leading to greater efficiency and cost effectiveness.”

No survey would be complete without a handy-dandy infographic to summarize the results, click here to view the infographic for this survey by Huron Legal.

So, what do you think? Do these results reflect a promising trend? Or do they reflect that we still have a long way to go? 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. eDiscovery Daily is made available by CloudNine 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.

Judge Peck Wades Back into the TAR Pits with ‘Da Silva Moore Revisited’: eDiscovery Case Law

March 12, 2015

In Rio Tinto Plc v. Vale S.A., 14 Civ. 3042 (RMB)(AJP) (S.D.N.Y. Mar. 2, 2015), New York Magistrate Judge Andrew J. Peck approved the proposed protocol for technology assisted review (TAR) presented by the parties, but made it clear to note that “the Court’s approval ‘does not mean. . . that the exact ESI protocol approved here will be appropriate in all [or any] future cases that utilize [TAR].’”

Judge’s Opinion

Judge Peck began by stating that it had been “three years since my February 24, 2012 decision in Da Silva Moore v. Publicis Groupe & MSL Grp., 287 F.R.D. 182 (S.D.N.Y. 2012)” (see our original post about that case here), where he stated:

“This judicial opinion now recognizes that computer-assisted review [i.e., TAR] is an acceptable way to search for relevant ESI in appropriate cases.”

Judge Peck then went on to state that “[i]n the three years since Da Silva Moore, the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” (Here are links to cases we’ve covered related to TAR in the last three years). He also referenced the Dynamo Holdings case from last year, calling it “instructive” in its approval of TAR, noting that the tax court ruled that “courts leave it to the parties to decide how best to respond to discovery requests”.

According to Judge Peck, the TAR issue still to be addressed overall “is how transparent and cooperative the parties need to be with respect to the seed or training set(s)”, commenting that “where the parties do not agree to transparency, the decisions are split and the debate in the discovery literature is robust”. While observing that the court “need not rule on the need for seed set transparency in this case, because the parties agreed to a protocol that discloses all non-privileged documents in the control sets”, Judge Peck stated:

“One point must be stressed — it is inappropriate to hold TAR to a higher standard than keywords or manual review. Doing so discourages parties from using TAR for fear of spending more in motion practice than the savings from using TAR for review.”

While approving the parties’ TAR protocol, Judge Peck indicated that he wrote this opinion, “rather than merely signing the parties’ stipulated TAR protocol, because of the interest within the ediscovery community about TAR cases and protocols.” And, he referenced Da Silva Moore once more, stating “the Court’s approval ‘does not mean. . . that the exact ESI protocol approved here will be appropriate in all [or any] future cases that utilize [TAR]. Nor does this Opinion endorse any vendor . . ., nor any particular [TAR] tool.’”

So, what do you think? How transparent should the technology assisted review process be? 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. eDiscovery Daily is made available by CloudNine 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.