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eDiscovery BREAKING Case Law: Judge Carter Upholds Judge Peck’s Predictive Coding Order

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 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.

Now, on April 25 (signed two days ago and filed yesterday), Judge Carter has issued an opinion and order in the case, upholding Judge Peck’s opinion approving computer-assisted review.  In the opinion and order, Judge Carter noted:

“[T]he Court adopts Judge Peck’s rulings because they are well reasoned and they consider the potential advantages and pitfalls of the predictive coding software. The Court has thoroughly reviewed the ESI protocol along with the parties’ submissions.  At the outset, the Court notes that Plaintiffs and Judge Peck disagree about the scope of Plaintiffs’ acquiescence concerning the use of the method. Judge Peck’s written order states that Plaintiffs have consented to its use, (Opinion and Order at 17 (“The decision to allow computer-assisted review in this case was relatively easy – the parties agreed to its use (although disagreed about how best to implement such review.”))), while Plaintiffs argue that Judge Peck’s order mischaracterizes their position (Pl. Reply, dated March 19, 2012, at 4-5). Nevertheless, the confusion is immaterial because the ESI protocol contains standards for measuring the reliability of the process and the protocol builds in levels of participation by Plaintiffs. It provides that the search methods will be carefully crafted and tested for quality assurance, with Plaintiffs participating in their implementation. For example, Plaintiffs’ counsel may provide keywords and review the documents and the issue coding before the production is made. If there is a concern with the relevance of the culled documents, the parties may raise the issue before Judge Peck before the final production. Further, upon the receipt of the production, if Plaintiffs determine that they are missing relevant documents, they may revisit the issue of whether the software is the best method. At this stage, there is insufficient evidence to conclude that the use of the predictive coding software will deny Plaintiffs access to liberal discovery. “

“Plaintiffs’ arguments concerning the reliability of the method are also premature. It is difficult to ascertain that the predictive software is less reliable than the traditional keyword search. Experts were present during the February 8 conference and Judge Peck heard from these experts. The lack of a formal evidentiary hearing at the conference is a minor issue because if the method appears unreliable as the litigation continues and the parties continue to dispute its effectiveness, the Magistrate Judge may then conduct an evidentiary hearing. Judge Peck is in the best position to determine when and if an evidentiary hearing is required and the exercise of his discretion is not contrary to law. Judge Peck has ruled that if the predictive coding software is flawed or if Plaintiffs are not receiving the types of documents that should be produced, the parties are allowed to reconsider their methods and raise their concerns with the Magistrate Judge. The Court understands that the majority of documentary evidence has to be produced by MSLGroup and that Plaintiffs do not have many documents of their own. If the method provided in the protocol does not work or if the sample size is indeed too small to properly apply the technology, the Court will not preclude Plaintiffs from receiving relevant information, but to call the method unreliable at this stage is speculative.”

“There simply is no review tool that guarantees perfection. The parties and Judge Peck have acknowledged that there are risks inherent in any method of reviewing electronic documents. Manual review with keyword searches is costly, though appropriate in certain situations. However, even if all parties here were willing to entertain the notion of manually reviewing the documents, such review is prone to human error and marred with inconsistencies from the various attorneys’ determination of whether a document is responsive. Judge Peck concluded that under the circumstances of this particular case, the use of the predictive coding software as specified in the ESI protocol is more appropriate than keyword searching. The Court does not find a basis to hold that his conclusion is clearly erroneous or contrary to law. Thus, Judge Peck’s orders are adopted and Plaintiffs’ objections are denied.”

So, what do you think?  Will this settle the issue?  Or will the plaintiffs attempt another strategy to derail the approved predictive coding plan?  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 Case Law: Friday the 13th Is Unlucky for Judge Peck
 

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 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.

This past Friday, April 13, the plaintiffs filed their formal motion, which included a Notice of Motion for Recusal or Disqualification, Memorandum of Law in Support of Plaintiffs’ Motion for Recusal or Disqualification and Declaration of Steven L. Wittels in Support of Plaintiffs’ Motion for Recusal or Disqualification.

In the 28 page Memorandum of Law, the plaintiffs made several arguments that they contended justified Judge Peck’s recusal in this case.  They included:

  • In the first conference over which Judge Peck presided on December 2, 2011, he remarked that Defendants “must have thought they died and went to Heaven” to have him assigned to this case and he subsequently repeated that remark in at least two public panels afterward.  In one of the panel appearances, he also (according to the plaintiffs) acknowledged that the plaintiffs’ only alternative was to ask him to recuse himself (in that same panel discussion, Judge Peck also quoted the plaintiff as saying “Oh no no, we’re ok with using computer-assisted review; we just had some questions about the exact process”).
  • In the second status conference held before Judge Peck on January 4, the plaintiffs noted that he encouraged the defendants to enlist the assistance of their eDiscovery counsel, Ralph Losey – whom Judge Peck claimed to know “very well.” During the next four weeks, Judge Peck served on three public panels with defense counsel Losey about predictive coding which the plaintiffs referred to as “ex parte contacts” where the plaintiffs were not informed.  Judge Peck also wrote an article last year entitled Search Forward, where, according to the plaintiffs, he “cited favorably to defense counsel Losey's blog post Go Fish” and Losey responded “in kind to Judge Peck‟s article by posting a blog entry, entitled Judge Peck Calls Upon Lawyers to Use Artificial Intelligence and Jason Barn[sic] Warns of a Dark Future of Information Burn-Out If We Don’t, where he embraced Judge Peck's position on predictive coding”.
  • One week after the LegalTech trade show, on February 8, the plaintiffs contended that “Judge Peck adopted Defendant MSL’s predictive coding protocol wholesale from the bench” and, on February 24 (link above), he issued the written order “[f]or the benefit of the Bar”.  Some of the materials cited were authored by Judge Peck, Ralph Losey, and Maura R. Grossman, eDiscovery counsel at Wachtell, Lipton, Rosen & Katz, all of whom served together on the panel at LegalTech.
  • The plaintiffs also noted that Judge Peck “confirms that he received, at a minimum, transportation, lodging, and meals free of cost for no less than 10 appearances at eDiscovery conferences in 2010” and did not disclose this compensation (or compensation for similar appearances in 2011 and 2012) to the plaintiffs.  They also noted that Judge Peck failed to inform them of Recommind’s sponsorship of the LegalTech conference where Judge Peck participated on panel discussions regarding predictive coding.

Regardless whether Judge Peck is partial or not, the plaintiffs argued in the Memorandum that “§ 455(a) requires a judge‟s recusal for the mere appearance of impropriety or partiality – i.e. if a reasonable outsider might entertain a plausible suspicion or doubt as to the judge‟s impartiality”.

In his order on April 5, Judge Peck noted that the “defendants will have 14 days to respond”, so it will be interesting to see if they do and what that response entails.  They will certainly have some bold statements to address from the plaintiffs if they do respond.

So, what do you think?  Do the plaintiffs make a valid argument for recusal?  Or is this just a case of “sour grapes” on their part for disagreeing, not with predictive coding in general, but the specific approach to predictive coding addressed in Judge Peck’s order of February 24?  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 Responds to Plaintiff’s Request for Recusal
 

Normally, we make one post per business day to the blog.  However, we decided to make a second post for this important case (that has been discussed so intently in the industry) today as we couldn’t wait until after the holiday to report on it.

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 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.

On Monday, Judge Peck issued an order in response to Plaintiffs’ request for his recusal, which, according to Judge Peck, was contained in a letter dated March 28, 2012 (not currently publicly available).  Here is what the Order said:

“The Court is in receipt of plaintiffs' March 28, 2012 letter requesting my recusal.  Plaintiffs shall advise as to whether they wish to file a formal motion or for the Court to consider the letter as the motion (in which case defendants will have 14 days to respond, from the date of plaintiffs' confirmation that the letter constitutes their motion).”

“The Court notes that my favorable view of computer assisted review technology in general was well known to plaintiffs before I made any ruling in this case, and I have never endorsed Recommind's methodology or technology, nor received any reimbursement from Recommind for appearing at any conference that (apparently) they and other vendors sponsored, such as Legal Tech. I have had no discussions with Mr. Losey about this case, nor was I aware that he is working on the case. It appears that after plaintiffs' counsel and vendor represented to me that they agreed to the use of predictive coding, plaintiffs now claim that my public statements approving generally of computer assisted review make me biased. If plaintiffs were to prevail, it would serve to discourage judges (and for that matter attorneys) from speaking on educational panels about ediscovery (or any other subject for that matter). The Court suspects this will fall on deaf ears, but I strongly suggest that plaintiffs rethink their "scorched earth" approach to this litigation.”

So, what do you think?  What will happen 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 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.

eDiscovery Daily Is Eighteen! (Months Old, That Is)
 

Eighteen months ago yesterday, eDiscovery Daily was launched.  A lot has happened in the industry in eighteen months.  We thought we might be crazy to commit to a daily blog each business day.  We may be crazy indeed, but we still haven’t missed a business day yet.

The eDiscovery industry has grown quite a bit over the past eighteen months and is expected to continue to do so.   So, there has not been a shortage of topics to address; instead, the challenge has been selecting which topics to address.

Thanks for noticing us!  We’ve more than doubled our readership since the first six month period, had two of our biggest “hit count” days in the last month and have more than quintupled our subscriber base since those first six months!  We appreciate the interest you’ve shown in the topics and 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!

We also want to thank the blogs and publications that have linked to our posts and raised our public awareness, including Pinhawk, The Electronic Discovery Reading Room, Unfiltered Orange, Atkinson-Baker (depo.com), Litigation Support Technology & News, Next Generation eDiscovery Law & Tech Blog, InfoGovernance Engagement Area, Justia Blawg Search, Learn About E-Discovery, Ride the Lightning, Litigation Support Blog.com, ABA Journal, Law.com and any other publication that has picked up at least one of our posts for reference (sorry if I missed any!).  We really appreciate it!

As we’ve done in the past, we like to take a look back every six months at some of the important stories and topics during that time.  So, here are some posts over the last six months you may have missed.  Enjoy!

eDiscovery Trends: Is Email Still the Most Common Form of Requested ESI?

eDiscovery Trends: Sedona Conference Provides Guidance for Judges

eDiscovery Trends: Economy Woes Not Slowing eDiscovery Industry Growth

eDiscovery Law: Model Order Proposes to Limit eDiscovery in Patent Cases

eDiscovery Case Law: Court Rules 'Circumstantial Evidence' Must Support Authorship of Text Messages for Admissibility

eDiscovery Best Practices: Cluster Documents for More Effective Review

eDiscovery Best Practices: Could This Be the Most Expensive eDiscovery Mistake Ever?

eDiscovery 101: Simply Deleting a File Doesn’t Mean It’s Gone

eDiscovery Case Law: Facebook Spoliation Significantly Mitigates Plaintiff’s Win

eDiscovery Best Practices: Production is the “Ringo” of the eDiscovery Phases

eDiscovery Case Law: Court Grants Adverse Inference Sanctions Against BOTH Sides

eDiscovery Trends: ARMA International and EDRM Jointly Release Information Governance White Paper

eDiscovery Trends: The Sedona Conference International Principles

eDiscovery Trends: Sampling within eDiscovery Software

eDiscovery Trends: Small Cases Need Love Too!

eDiscovery Case Law: Court Rules Exact Search Terms Are Limited

eDiscovery Trends: DOJ Criminal Attorneys Now Have Their Own eDiscovery Protocols

eDiscovery Best Practices: Perspective on the Amount of Data Contained in 1 Gigabyte

eDiscovery Case Law: Computer Assisted Review Approved by Judge Peck in New York Case

eDiscovery Case Law: Not So Fast on Computer Assisted Review

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: Not So Fast on Computer Assisted Review
 

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 approving of the use of computer-assisted review of electronically stored information (“ESI”) for this case, making it likely the first case to recognize that “computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.”  However, last Tuesday (March 13), District Court Judge Andrew L. Carter, Jr. granted plaintiffs’ request to submit additional briefing on their objections to the ruling.

On February 8, the parties attended a hearing to discuss their discovery protocol, and in particular the use of computer-assisted review (also referenced as “predictive coding”).  At the hearing, Judge Peck issued a ruling, approving the use of computer-assisted review, and instructed the parties to submit a draft protocol for court approval.  Judge Peck approved the proposed protocol on February 22 that had been submitted, over the plaintiffs’ objections.  On February 24, Judge Peck issued his written opinion detailing his rulings from the February 8th hearing.

On February 22 (the same day the protocol was approved, but before Judge Peck’s written opinion), the plaintiffs filed their 24 page objections to the February 8th discovery rulings, indicating their argument that the “Magistrate’s decision to adopt MSL’s predictive coding protocol is clearly erroneous and contrary to law.”  The plaintiffs specifically argued that “sanctioning the use of predictive coding in this employment discrimination case violates Federal Rule of Civil Procedure 26” and also argued that the court’s adoption of a “novel discovery methodology” without “supporting evidence” or “standards for assessing reliability” was “clearly erroneous and contrary to law”.  On March 7, the defendant filed its opposition to plaintiffs’ objections.

Then, on March 9, the plaintiffs submitted a letter to District Judge Carter, requesting an opportunity to “file a ten-page reply brief” to the defendant’s response.  In the letter, the plaintiffs argued that Judge Peck’s written ruling, issued two days after their objections were filed, “expanded on the reasoning for the rulings he had made from the bench,” including relying on “a number of articles that were not addressed in the parties’ submissions” and making observations about plaintiffs’ objections.  As a result, the plaintiffs requested the opportunity to “squarely address Magistrate Judge Peck’s complete rulings.”  In addition, the plaintiffs argued that allowing their reply would not result in prejudice where the defendant had “the benefit” of filing its opposition to plaintiffs’ objections after the written ruling was issued and thus had the opportunity to consider Magistrate Judge Peck’s analysis when crafting their response.

Which brings us to last Tuesday (March 13), Judge Carter granted plaintiffs’ request and ordered their reply be submitted by March 19 (that’s today!).  Then, we’ll see what happens next.

So, what do you think?  Do the plaintiff’s objections have merit?  If Judge Carter throws out predictive coding, will there be hand wringing and wailing from the predictive coding vendors?  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: The Rest of the Team
 

When beginning a new eDiscovery project, it's important to start by estimating the various tasks that will need to be performed and the type of personnel that will be needed. As the project unfolds, the tasks required to complete it may change, so it is important to revisit the project tasks and assignments to determine whether additional personnel are needed or if you can cut back. Yesterday, we began discussing the types of roles that could be associated with a typical eDiscovery project, here are some more:

Processing Personnel: After your team has identified and collected the ESI, it will usually be necessary to process that ESI with one or more software applications to prepare the data for searching and review to reduce or cull the data volume (such as an early case assessment tool like FirstPass®, powered by Venio FPR™) and limit review to the most highly relevant documents. There are several tools and/or service providers available to process your ESI; it’s simply a matter of selecting the best tool(s) for your organization. For each case, key decision makers on the team will need to evaluate the specific needs of that case to determine whether additional software or an outside vendor is needed and select the appropriate software to license and/or vendor to engage, if so.

Document Review Personnel: After identifying, collecting and processed the ESI, it needs to be reviewed by qualified review personnel to at least determine if it is responsive to the production request from opposing counsel and if it should be withheld due to a claim of privilege. Depending on the case, the ESI may need to be reviewed for other reasons or the review for responsiveness and/or privilege may be more in-depth.  Usually, the reviewers are licensed attorneys; though, experienced paralegals are used in some cases. Either way, they will require training and guidance regarding the expectations of their job in general, receive instructions on the specific review project which they are working on, and be properly trained on use of the selected review application.

Hosting Provider: Depending on the case, you may use a hosting provider for the ESI from as early as collection through production. Large volume of ESI to be processed and reviewed, requirement to distribute review tasks across personnel who may be in different geographical locations, and the arrangements between the parties concerning the method and format of production are factors for deciding to use a hosting provider and also for selecting the desired provider.

Attorney(s): Did you think I forgot the attorneys?  Of course, potentially complicated legal questions and issues arise in just about any discovery project, so you need an attorney who understands the legal rules and complexities associated with discovery of ESI. If the lead attorney doesn’t have the requisite knowledge in this area, it may be necessary to add an attorney with specialized eDiscovery knowledge to the team to provide advice and coordination on discovery issues.  Many corporations have designated attorneys or paralegals on their in house legal staff who work on all eDiscovery matters; however, some organizations may also use outside eDiscovery counsel to work on discovery-related matters even if they’re not part of the firm representing the organization.

Each case will have unique requirements that affect the make-up and size of the team, so not all of the roles discussed over the past two days will be required for every case and the number of personnel in each role may also vary.

So, what do you think?  Do you estimate the team members needed for your project before it begins?  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: Computer Assisted Review Approved by Judge Peck in New York Case
 

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 on last Friday (February 24), approving of the use of computer-assisted review of electronically stored information (“ESI”) for this case, making it likely the first case to recognize that “computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.”  As noted in our previous blog post about the case, the parties had been instructed to submit draft protocols by February 16th.

After providing a background of the Title VII gender discrimination case, Judge Peck went on to reference his article (Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?) to explain computer-assisted review.  He then detailed the parties’ negotiation of an agreed protocol for the computer-assisted review for this case.  The Court accepted the defendants’ proposal, which included seven iterative “seeding” reviews, but included the following caveat:

“But if you get to the seventh round and [plaintiffs] are saying that the computer is still doing weird things, it’s not stabilized, etc., we need to do another round or two, either you will agree to that or you will both come in with the appropriate QC information and everything else and [may be ordered to] do another round or two or five or 500 or whatever it takes to stabilize the system.”

The opinion also included a section entitled “Further Analysis and Lessons for the Future” in which several, more general topics surrounding computer-assisted review were addressed.  Judge Peck recognized that “computer-assisted review is not a magic, Staples-Easy-Button, solution appropriate for all cases” and noted that “[t]he goal is for the review method to result in higher recall and higher precision than another review method, at a cost proportionate to the ‘value’ of the case” (referenced in the article Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, written by Maura R. Grossman & Gordon V. Cormack).

In his conclusion, Judge Peck noted:

“This Opinion appears to be the first in which a Court has approved of the use of computer-assisted review.  That does not mean computer-assisted review must be used in all cases, or that the exact ESI protocol approved here will be appropriate in all future cases that utilize computer-assisted review.  Nor does this Opinion endorse any vendor … nor any particular computer-assisted review tool.  What the Bar should take away from this Opinion is that computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review.  Counsel no longer have to worry about being the “first” or “guinea pig” for judicial acceptance of computer-assisted review.  As with keywords or any other technological solution to e-discovery, counsel must design an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant ESI while adhering to Rule 1 and Rule 26(b)(2)(C) proportionality.  Computer-assisted review now can be considered judicially-approved for use in appropriate cases.”

For those in the industry yearning for case law that addresses the approved use of technology assisted review methodologies, Judge Peck’s in-depth discussion of the topic and conclusion appears to address that need.  It will be interesting to see how this case continues and whether additional discussion of the methodology will be discussed in case filings!

So, what do you think?  Is it high time for courts to recognize and approve computer-assisted review or is the court system still not ready for technology based approaches?  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: Brian Schrader of Business Intelligence Associates (BIA)
 

This is the fifth of the 2012 LegalTech New York (LTNY) Thought Leader Interview series.  eDiscoveryDaily interviewed several thought leaders at LTNY this year and generally asked each of them the following questions:

  1. What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?
  2. Which trend(s), if any, haven’t emerged to this point like you thought they would?
  3. What are your general observations about LTNY this year and how it fits into emerging trends?
  4. What are you working on that you’d like our readers to know about?

Today’s thought leader is Brian Schrader. Brian is Co-Founder and President of Business Intelligence Associates, Inc. (BIA).  Brian is an expert and frequent writer and speaker on eDiscovery and computer forensics topics, particularly those addressing the collection, preservation and processing functions of the eDiscovery process.

What do you consider to be the emerging trends in eDiscovery that will have the greatest impact in 2012?

Well, I think you don't have to walk around the floor very much to see that this year everybody is talking about predictive coding.  I think you're going to see that shake out a lot over the next year.  We've been doing predictive coding for about a year and a half now, and we have our own algorithms for that.  We have our review teams, and they've been using our algorithms to do predictive coding.  We like to call it “suggestive coding”.

What I expect you’ll find this year is a standard shakeout among providers because everybody talks about predictive coding.  The question is how does everybody approach it?  It's very much a black-box solution.  Most people don't know what goes on inside that process and how the process works.  So, I think that's going to be a hot topic for a while.  We're doing a lot of predictive coding and BIA is going to be announcing some cool things later this year on our predictive coding offerings.

Every provider that you talk to seems to have a predictive coding solution.  I'm really looking forward to seeing how things develop, because we have a lot of input on it and a lot of experience.  We have our review team that is reviewing millions and millions of documents per year, so we can compare various predictive coding engines to real results.  It gives us the ability to review the technology.  We look forward to being part of that conversation and I hope to see a little bit more clarity from the players and some real standards set around that process.

The courts have now also started to look at these algorithmic methods, Judge Peck in particular.  Everybody agrees that key word searching is inadequate.  But, people are still tentative about it – they say “it sounds good, but how does it work?  How are we going to approach it?”

Which trend(s), if any, haven’t emerged to this point like you thought they would?

Frankly, I thought we'd see a lot more competition for us in data collection.  A huge pain point for companies is how to gather all their data from all over the world.  It's something we've always focused on.  I started to see some providers focus on that, but now it looks like everybody, even some of the classic data collection providers, are focusing more on review tools.  That surprises me a bit, though I'm happy to be left with a wide-open field to have more exposure there.

When we first came out with TotalDiscovery.com last year, we thought we'd see all sorts of similar solutions pop up out there, but we just haven't.  Even the traditional collection companies haven't really offered a similar solution.  Perhaps it’s because everybody has a “laser focus” on predictive coding, since document review is so much more expensive.  I think that has really overpowered the focus of a lot of providers as they've focused only on that.  We have tried to focus on both collection and review.

I think data processing has become a commodity.  In talking to customers, they don't really ask about it anymore.  They all expect that everybody has the same base level capabilities.  Everybody knows that McDonald's secret sauce is basically Thousand Island dressing, so it’s no longer unique, the “jig is up”.  So, it's all about the ends, the collection, and the review.

What are your general observations about LTNY this year and how it fits into emerging trends?

Well, predictive coding again.  I think there's an awful lot of talk but not enough detail.  What you're seeing is a lot of providers who are saying “we’ll have predictive coding in six months”.  You're going to see a huge number of players in that field this year.  Everybody's going to throw a hat in the ring, and it's going to be interesting to see how that all works out.  Because how do you set the standards?  Who gets up there and really cooperates? 

I think it's really up to the individual companies to get together and cooperate on this. This particular field is so critical to the legal process that I don't think you can have everybody having individual standards and processes.  The most successful companies are going to be the ones that step up and work together to set those standards.  And, I don't know for sure, but I wouldn't be surprised if The Sedona Conference already has a subcommittee on this topic.

What are you working on that you’d like our readers to know about?

Our biggest announcement is around data collection – we've vastly expanded it.  Our motto is to collect “any data, anytime, anywhere”.  We've been providing data collection services for over a decade, and our collection guys like to say they've never met a piece of data they didn't like.

Now, we've brought that data collection capability direction to TotalDiscovery.com.  The latest upgrade, which we’re previewing at the show to be released in March, will offer the ability to collect data from social media sites like Facebook, Twitter, as well as collections from Webmail and Apple systems.  So, you can collect pretty much anything through TotalDiscovery.com that we have historically offered in our services division. It gives you a single place to manage data collection and bring it all together in one place, and then deliver it out to the review platform you want.

We’re on a three-week development cycle, which doesn’t always mean new features every three weeks, but it does mean we’re regularly adding new features.  Mid-year in 2011, we added legal hold capabilities and we’ve also recently added other components to simplify search and data delivery.  Now, we’ve added expanded collection for social media sites, Webmail and Apple.  Later this year, we expect to release our predictive coding capabilities to enable clients to perform predictive coding right after collection instead of waiting until the data is in the review tool.

Thanks, Brian, for participating in the interview!

And to the readers, as always, please share any comments you might have or if you’d like to know more about a particular topic!