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Electronic Discovery

eDiscovery History: Zubulake’s e-Discovery
 

In the 22 months since this blog began, we have published 133 posts related to eDiscovery case law.  When discussing the various case opinions that involve decisions regarding to eDiscovery, it’s easy to forget that there are real people impacted by these cases and that the story of each case goes beyond just whether they preserved, collected, reviewed and produced electronically stored information (ESI) correctly.  A new book, by the plaintiff in the most famous eDiscovery case ever, provides the “backstory” that goes beyond the precedent-setting opinions of the case, detailing her experiences through the events leading up to the case, as well as over three years of litigation.

Laura A. Zubulake, the plaintiff in the Zubulake vs. UBS Warburg case, has written a new book: Zubulake's e-Discovery: The Untold Story of my Quest for Justice.  It is the story of the Zubulake case – which resulted in one of the largest jury awards in the US for a single plaintiff in an employment discrimination case – as told by the author, in her words.  As Zubulake notes in the Preface, the book “is written from the plaintiff’s perspective – my perspective. I am a businessperson, not an attorney. The version of events and opinions expressed are portrayed by me from facts and circumstances as I perceived them.”  It’s a “classic David versus Goliath story” describing her multi-year struggle against her former employer – a multi-national financial giant.

Zubulake begins the story by developing an understanding of the Wall Street setting of her employer within which she worked for over twenty years and the growing importance of email in communications within that work environment.  It continues through a timeline of the allegations and the evidence that supported those allegations leading up to her filing of a discrimination claim with the Equal Employment Opportunity Commission (EEOC) and her subsequent dismissal from the firm.  This Allegations & Evidence chapter is particularly enlightening to those who may be familiar with the landmark opinions but not the underlying evidence and how that evidence to prove her case came together through the various productions (including the court-ordered productions from backup tapes).  The story continues through the filing of the case and the beginning of the discovery process and proceeds through the events leading up to each of the landmark opinions (with a separate chapter devoted each to Zubulake I, III, IV and V), then subsequently through trial, the jury verdict and the final resolution of the case.

Throughout the book, Zubulake relays her experiences, successes, mistakes, thought processes and feelings during the events and the difficulties and isolation of being an individual plaintiff in a three-year litigation process.  She also weighs in on the significance of each of the opinions, including one ruling by Judge Shira Scheindlin that may not have had as much impact on the outcome as you might think.  For those familiar with the opinions, the book provides the “backstory” that puts the opinions into perspective; for those not familiar with them, it’s a comprehensive account of an individual who fought for her rights against a large corporation and won.  Everybody loves a good “David versus Goliath story”, right?

The book is available at Amazon and also at CreateSpace.  Look for my interview with Laura regarding the book in this blog next week.

So, what do you think?  Are you familiar with the Zubulake opinions?  Have you read the book?  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.

State eDiscovery Rules: Pennsylvania Supreme Court Amends eDiscovery Rules, Rejects Federal Rules
 

Last week, the Pennsylvania Supreme Court adopted amendments to the rules on how discovery of electronically stored information is handled in the state.  However, the chairwoman of Pennsylvania’s Civil Procedural Rules Committee, Diane W. Perer, has expressly rejected federal law on the subject in her explanatory comment stating that, despite the adoption of the term “electronically stored information,” “there is no intent to incorporate federal jurisprudence surrounding the discovery of electronically stored information.”  Instead, “[t]he treatment of such issues is to be determined by traditional principles of proportionality under Pennsylvania law”.

The explanatory comment also discusses the “Proportionality Standard” and its application to electronic discovery, as well as “Tools for Addressing Electronically Stored Information”.  When it comes to proportionality, Pennsylvania courts are required to consider:

“(i) the nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake;

(ii) the relevance of electronically stored information and its importance to the court’s adjudication in the given case;

(iii) the cost, burden, and delay that may be imposed on the parties to deal with electronically stored information;

(iv) the ease of producing electronically stored information and whether substantially similar information is available with less burden; and

(v) any other factors relevant under the circumstances.”

When it comes to tools for addressing ESI, the comment stated that "[p]arties and courts may consider tools such as electronic searching, sampling, cost sharing and non-waiver agreements to fairly allocate discovery burdens and costs. When using non-waiver agreements, parties may wish to incorporate those agreements into court orders to maximize protection vis-à-vis third parties."

The amendments affect rules 4009.1, 4009.11, 4009.12, 4009.21, 4009.23, and 4011.  For example, in Rule 4009.1, the court added the phrase "electronically stored information" to the "production of documents and things" a party may request. It also added a subsection that a party requesting ESI "may specify the format in which it is to be produced and a responding party or person not a party may object."  If no format is requested, the rule states the ESI can be produced in the form in which it is typically maintained.

In some cases, the amendments affect only the notes, not the substance of the rule itself.  For example, in a note to Rule 4009.11 regarding the request for production of documents and things, the court said a request for ESI should be "as specific as possible."

So, what do you think?  Was it necessary for Pennsylvania to distance themselves from the Federal rules, or was it a good idea?  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.

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: Twitter Seeks to Succeed Where Defendant Failed
 

Yesterday, we discussed a case where the court denied a criminal defendant’s attempt to quash a subpoena of his Twitter account information.  Now it’s Twitter’s turn to file a motion to quash the court’s order.  Filed this past Monday (May 7), the motion seeks to quash the order based on the grounds that the order imposes an undue burden on Twitter for three reasons including the reason that it forces them to “violate federal law”.

In People v. Harris, No. 2011NY080152 (N.Y. Crim. Ct.), the social network filed to quash a subpoena that ordered it to turn over “any and all user information” for Twitter-user Malcolm Harris between Sept. 15 and Dec. 31, 2011.

Twitter’s counsel argued that the order violates the Fourth Amendment, which guards citizens against unreasonable search and seizures, and would force the company to violate federal law.

Twitter also stated that the order does not comply with the Uniform Act, a stance the information network conveyed to Assistant District Attorney Lee Langston in March. “Pursuant to the Uniform Act, a criminal litigant cannot compel an appearance by, or production of documents from, a California resident without presenting the appropriate certification to the California court, scheduling a hearing and obtaining a California subpoena for production,” Twitter’s legal team said in the email response.

In its motion, the company even argued that, based on Twitter’s terms of service around content ownership (Twitter users own their content), Harris has legal standing to challenge the original subpoena; the court previously ruled that he did not.

“This is a big deal. Law enforcement agencies — both the federal government and state and city entities — are becoming increasingly aggressive in their attempts to obtain information about what people are doing on the Internet,” ACLU senior staff attorney Aden Fine said in a statement.

“[The Internet] is, in some ways, the ultimate embodiment of the First Amendment. But one potential problem for free speech on the Internet is that, for almost all of us, we need to rely on Internet companies. And while the government is bound by the First Amendment, the First Amendment may not always prevent private companies from restricting our free speech rights,” Fine said. “That is why it is so important that the public — and other companies — know when a company actually stands up for its users’ rights. Twitter did so here, and Twitter should be applauded for that.”

So, what do you think?  Does Twitter make some valid arguments and will they succeed where the defendant failed?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: VentureBeat.

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 an Appropriate eDiscovery Outcome, Call the Master
 

Special Master, that is.

Last week, Fios sponsored a webcast entitled Special Masters & e-Discovery with Craig Ball, who, in addition to being a prolific contributor to continuing legal and professional education programs throughout the US (and previous thought leader interviewee on this blog) has served as court-appointed special master in 30 cases (including at least one case covered here).  Not surprisingly, the webcast was very informative, reflecting Craig’s considerable experience and knowledge in having served in that role in so many cases.  A few highlights:

  • Appointing a Special Master: In Federal cases, Fed. R. Civ. P. 53 discusses the ability for a court to appoint a master with the parties’ consent.  Several states also have equivalent rules, for example, Rule 171 of the Texas Rules of Civil Procedure governs the ability to do so in Texas.
  • Circumstances Where Special Master is Most Often Required: Special masters are typically called in when special knowledge is required that neither party (nor their experts) possesses, or when one party is suspected of malfeasance.  Craig estimated that about half of the thirty cases where he has been retained have been because of suspected malfeasance by one party.  From an expertise standpoint, Craig noted that he most often fills this role related to a computer forensics need.
  • To Be “Special”, You Need to “Master” More than One Skill: Special masters need not only to be able to understand the law, they also need to understand systems, forms of ESI, mechanisms for preservation and formats of production.  In other words, they need the ability to “speak Geek”.
  • Special Masters Are Different From Mediators: A mediator’s job is to obtain agreement between parties.  While a special master may also do that to a degree, he/she must also apply good sense to the situation.  Craig’s analogy was that “just because both lawyers believe that they can fly” doesn’t mean that the special master should concur with that agreement.
  • Why Not Rely on the Judge for Such Services?:  Craig noted that many judges don’t have the technical expertise to adequately address all eDiscovery issues, so a special master can be called upon to provide recommendations regarding those issues to the Court.
  • Special Masters Are, Unsurprisingly, Not Free: Typically, they charge “senior partner” rates, reflecting their advanced level of expertise and experience.  Who pays?  It depends on the case, but potential malfeasance by a party can slant the costs to that party.  Special masters add value that can result in potentially significant cost savings to one or both parties, so they typically recoup those costs (and, often, a lot more).

The webcast also referenced two articles related to the subject of special masters and eDiscovery:

  • E‐Discovery: A Special Master's Perspective: Written by Craig himself, this nine page article talks about the pros and cons of Special Masters, the eight questions that lawyers need to be able to answer when working with special masters and the three typical reasons that eDiscovery fails, among other topics.  It also provides a terrific appendix with a two page Exemplar ESI Special Master Appointment Order.
  • Special Masters and e-Discovery: The Intersection of Two Recent Revisions to Federal Rules of Civil Procedure: This fifty-nine page article was written by The Honorable Shira A. Scheindlin (United States District Judge for the Southern District of New York and presiding judge of the notable Zubulake v. UBS Warburg case) & Jonathan M. Redgrave (founding partner of the firm of Redgrave, Daley, Ragan & Wagner and Chair Emeritus of The Sedona Conference’s® Working Group on Best Practices for Electronic Document Retention and Production).  It discusses the changes to Rule 53, governing the appointment of special masters and the changes to the Federal Rules for eDiscovery, suggesting appropriate uses for special masters for legal and technical issues.

If you missed the webcast (which is too bad, because Craig was entertaining and informative, as always), these articles provide good information on the use of special masters in eDiscovery.

So, what do you think?  Have you ever used a special master to address eDiscovery issues?  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: Is the Third Time the Charm for Technology Assisted Review?
 

A few weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, Magistrate Judge Andrew J. Peck issued an opinion making it the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case.  Or, so we thought.  Now, the plaintiff has objected to the plan and even formally requested the recusal of Judge Peck.  Conversely, in Kleen Products LLC v. Packaging Corporation of America, et al., the plaintiffs have asked Magistrate Judge Nan Nolan to require the producing parties to employ a technology assisted review approach (referred to as "content-based advanced analytics," or CBAA) in their production of documents for discovery purposes, and that request is currently being considered.  Now, there’s a third case where the use of technology assisted review is actually being approved in an order by the judge.

In Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al, Virginia State Circuit Court Judge James H. Chamblin ordered that the defendants can use predictive coding for discovery in this case, despite the plaintiff's objections that the technology is not as effective as human review.  The order was issued after the defendants issued a motion requesting either that predictive coding technology be allowed in the case or that the plaintiffs pay any additional costs associated with traditional review.  The defendant has an 8 terabyte data set that they are hoping to reduce to a few hundred gigabytes through advanced culling techniques.

In ruling, Judge Chamblin noted: “Having heard argument with regard to the Motion of Landow Aviation Limited Partnership, Landow Aviation I, Inc., and Landow Company Builders, Inc., pursuant to Virginia Rules of Supreme Court 4:1(b) and (c) and 4:15, it is hereby ordered Defendants shall be allowed to proceed with the use of predictive coding for purposes of processing and production of electronically stored information.”

Judge Chamblin’s order specified 60 days for processing, and another 60 days for production and noted that the receiving party will still be able to question "the completeness of the contents of the production or the ongoing use of predictive coding."  (Editor’s note: I would have included the entire quote, but it’s handwritten and Judge Chamblin has handwriting almost as bad as mine!)

As in the other cases, it will be interesting to see what happens next.  Will the plaintiff attempt to appeal or even attempt a Da Silva-like push for recusal of the Judge?  Or will they accept the decision and gear their efforts toward scrutinizing the resulting production?  Stay tuned.

So, what do you think?  Will this be the landmark case that becomes the first court-approved use of technology assisted review?  Or will the parties continue to “fight it out”?  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 Best Practices: First Name Searches Are Not Always Proper

I’ve worked with numerous clients over the years and provided assistance regarding searching best practices to maximize recall without sacrificing search precision, including the use of fuzzy and synonym searches to identify additional potentially responsive files and sampling to test the effectiveness of searches.  In several cases, the initial list of proposed search terms sent to me by the client includes first names of several individuals to search for as standalone terms.  Unfortunately, first names don’t always make the best search terms.

Why?  Because, in many cases, the first names are so common that they can apply to several people, not just the desired individuals to be retrieved.  Depending on the size of the collection, searching for names like “Bob”, “Bill”, “Cathy”, “Jim”, “Karen” or “Pat” could retrieve many additional files to be reviewed for numerous individuals other than those specifically sought, potentially driving up review costs unnecessarily.

Another issue with first name searches is the potential variations in first names that must be included to ensure that retrieval is complete.  Take this name, for example:

“Billy Bob Byrd”

To adequately perform a first name search, your search might need to include the following: “Billy”, “Bill”, “William”, “WR” (for “William Robert”), “Bob”, “Bobby”, “Robert” and maybe even “BB” (or “BBB”).  Searching for all these terms could yield many additional hits that are probably not responsive, costing time and money to review.  While emails and other informal communications may just refer to him as “Billy Bob”, more formalized communications such as financial documents would probably refer to his name differently.  So, it’s important to include all potential variations, several of which could add considerably more false hits.

You also have the potential that the name might also have another meaning.  For example, “Bill” can be a person’s name, but “bill” is another word for invoice (keep in mind that most search engines are case insensitive, so it doesn’t matter if it’s capitalized or not).  So, searching for “bill” as a person would also yield every instance where an invoice is referred to as a “bill”.

With that in mind, it’s important to get the complete names of the people you’re searching for, as well as any known nicknames, so that you can then make decisions on the best terms to use to retrieve the most hits for each person.  Consider these names:

  • Terry Bradshaw: “Terry” is a fairly common name, so I might opt to search for “Bradshaw” first and see what I get.  Or, to limit further, retrieve only documents where both “Terry” and “Bradshaw” are both mentioned.
  • Jay Leno: Same here, “Jay” is common, “Leno” is more unique.
  • Jennifer Lopez: “Jennifer” is more common than “Lopez”, though both are fairly common.  I would search for “Lopez” first, but assuming that the client provided the nickname “JLo”, I would search for that alternative also (if not, that would hopefully fall out during review as an additional term to search for).
  • Shaquille O’Neal: This is one case where the first name is actually more unusual than the last name, so I might prefer to search for “Shaquille” and would also search for the nickname of “Shaq”.

Of course, there may be occasions where only the first name is mentioned in a document without the last name.  If you can, try to combine with some other criteria to refine the broad search for the first name, such as email address of the individual in question or email addresses of those most likely to be talking about that individual.

What about the instances where both the first and last names are common?  What about my name, “Doug Austin”?  “Doug” isn’t an extremely common first name, but it’s somewhat common, and “Austin” is the name of a city.  Searching for either term by itself could be overbroad.  So, it makes sense to try to combine them.  To do so in a phrase search, however, could be limiting as searching for “Doug Austin” could miss occurrences of “Austin, Doug”.  Conducting the search as a proximity search (e.g., “Doug within 3 words of Austin”) will catch variations, regardless of order.

This is just one example why keyword searching isn’t an exact science.  These aren’t necessarily hard and fast rules and each situation is different.  It’s important to randomly sample and test search terms to ensure an appropriate balance of recall and precision.  Of course, parties sometimes agree that it may be necessary to include first names as standalone terms, even when they are common and may retrieve a high number of additional files that are not responsive, though testing those terms before negotiating with opposing counsel can help you to be prepared to negotiate a more favorable set of terms.

So, what do you think?  Do your search term lists include standalone first names?  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: Da Silva Moore Plaintiffs Question Predictive Coding Proposal, Judge Peck’s Activities
 

A few 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 last Monday, 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.

While the plaintiffs noted that “the use of predictive coding may be appropriate under certain circumstances”, they made several contentions in their brief, including the following:

  • That the protocol approved for predictive coding “was adopted virtually wholesale from Defendant MSLGroup”;
  • That “Judge Peck authored an article and made no fewer than six public appearances espousing the use of predictive coding” during “the ten months between the filing of the Amended Complaint and the February 24 written opinion”;
  • That Judge Peck appeared on several of these panels (three alone with Ralph Losey, Jackson Lewis’ ediscovery counsel in this case (and a previous thought leader on this blog) who the plaintiff refers to as “another outspoken predictive coding advocate whom Judge Peck ‘know[s] very well’”;
  • That “defense counsel Losey and Judge Peck cited each other’s positions on predictive coding with approval in their respective articles, which came out just four months before Judge Peck issued his ESI opinion”;
  • That, to promote its predictive coding technology, “Recommind is a frequent sponsor of the e-discovery panels on which Judge Peck and Defense counsel Losey sit” and “Judge Peck’s February 24 e-discovery ruling is expected to be a boon not only to the predictive coding industry, but also to Recommind’s bottom line”;
  • That, with regard to the defendants’ proposed protocol, “Judge Peck failed to hold an evidentiary hearing or obtain expert testimony as to its reliability and accuracy”; and
  • That, “in the same preliminary study MSL relies on to tout the quality of the technology to be used in its predictive coding protocol, the technology’s “recall,” was very low, on average 35%”, so the defendants’ proposed protocol “risks failing to capture up to 65% of the documents material to Plaintiffs’ case”.

In a declaration supplementing the plaintiffs’ filing, Paul J. Neale, chief executive officer at DOAR Litigation Consulting and the plaintiffs’ eDiscovery consultant, contended that Judge Peck approved a predictive coding process that “does not include a scientifically supported method for validating the results”. He also contended in the declaration that Peck relied on “misstatements” by two Recommind employees (Eric Seggebruch and Jan Puzicha) that misrepresent the effectiveness and accuracy of the Recommind predictive coding process and also noted that Recommind did not perform as well at the 2011 Text Retrieval Conference (TREC) as its marketing materials and experts assert.

Now, the ball is back in Judge Carter’s court.  Will he hold an evidentiary hearing on the eDiscovery issues raised by the plaintiff?  Will he direct Judge Peck to do so?  It will be interesting to see what happens next?

So, what do you think?  Do the plaintiff’s objections have merit?  Will Judge Carter give the defendants a chance to respond?  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.