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Proportionality

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: No Race Tires on This Vehicle, Taxation of eDiscovery Costs Granted
 

The trend for defendants requesting plaintiffs to be responsible for eDiscovery costs when they lose is continuing.  Sometimes that request is granted, at least partially, as in this case and this case.  In another case, taxation of eDiscovery costs was initially granted, but then reversed due to the parties' agreement to split the costs.  Then, there’s the case of Race Tires America, Inc. v. Hoosier Racing Tire Corporation.  Last May, the winning defendants were awarded $367,000 as reimbursement for eDiscovery costs.  (Hoosier Daddy!)  But, then in March of this year, an appellate court reversed all but $30,370 of those costs, implementing a narrow interpretation of 28 U.S.C. § 1920(4) for assigning those costs.  Now, a new case addresses the issue of taxation of costs once again.

In the case In re Online DVD Rental Antitrust Litig., No. M 09-2029 PJH, (N.D. Cal. Apr. 20, 2012), a federal court recently broadly interpreted the language in the federal statute governing the taxation of costs, 28 U.S.C. § 1920(4).

In this class action involving claims that Netflix had reached an agreement with Walmart to divide the market for sales and online rentals of DVDs, Netflix won summary judgment and filed a motion seeking to recover its costs, including those relating to eDiscovery. After the clerk awarded the costs, the plaintiff subscribers filed a motion with the court seeking review of the award.

In denying the plaintiffs’ request to limit the costs, the court rejected the Third Circuit’s narrow view of 28 U.S.C. § 1920(4) as expressed in its recent decision in the Race Tires America, Inc. v. Hoosier Racing Tire Corp. case, which vacated the district court’s approval of many eDiscovery costs. Although the court noted the Third Circuit’s “well-reasoned opinion,” the California court concluded that “in the absence of directly analogous Ninth Circuit authority, and in view of the court’s prior order in connection with the Blockbuster subscriber plaintiffs’ motion for review of the clerk's taxation of costs, broad construction of section 1920 with respect to electronic discovery production costs—under the facts of this case—is appropriate.” Ultimately, the court awarded the defendants slightly more than $700,000 in costs.

So, what do you think?  Will this ruling isolate the Race Tires case as an anomaly?  Will our monthly Netflix subscription rates go down?  (Probably not.)  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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 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 Best Practices: Tips for Saving Money in Litigation
 

A recent article on The National Law Journal (entitled Top 12 tips for saving money in litigation, authored by Damon W.D. Wright) had some good tips for – you guessed it – saving money during litigation.  I thought it would be worth discussing some of these, especially those that relate to eDiscovery cost savings practices.

  1. Conduct targeted preservation and collection: As the author notes, the duty to preserve is “not supposed to cause business operations to grind to a halt” and “the focus should be on the specific subject matter, evidence and likely witnesses in the case”.  If you promptly investigate and quickly identify those likely custodians and act to preserve their data, you’re probably satisfying your duty to preserve.  Just don’t lose sight of organization-wide processes that affect those likely witnesses, such as automated deletion policies, and suspend them for those witnesses, at least.  Don’t make the same mistake that EchoStar did.
  2. Calibrate the budget to the amount and importance of the case:  Ralph Losey, in his interview with eDiscovery Daily, spoke about bottom line proportional review and the idea of setting a budget based on the size and potential exposure of each case.  It simply doesn’t make sense to spend the same amount of effort in routine cases as it does for the “bet your company on the outcome” cases.
  3. File in a fast-moving court: Or pursue transfer if you’re the defendant.  Certainly, the longer a case drags out, the more expensive it is, and that includes for eDiscovery.
  4. Know the court: The author addresses this from a general perspective, but it could be important from an eDiscovery perspective, as a part of that.  Enough case law related to eDiscovery exists now that many judges have started to establish at least some track record with regard to issues such as spoliation, proportionality and sharing of eDiscovery costs.  It’s important to know how your judge views those issues.
  5. Have a key client liaison: Nobody knows the client better than the client themselves, so identifying the right person to serve as a liaison between the client and counsel can not only improve communications, but also streamline process and save costs.  As the author noted, the ideal client liaison will “know the organization well and have the authority, perseverance and communication skill needed to get the attention of others.”
  6. Select vendors and experts with care: The author notes that “you should always obtain price estimates (comparing ‘apples to apples’)” when considering eDiscovery vendors.  As a part of that, it’s important to make sure those comparisons are truly “apples to apples” and comprehensive.  Are per GB processing charges for the original (compressed) GB size or expanded?  Do hosting charges include per user fees or other ancillary charges or are they strictly per GB?  It’s important to make sure those distinctions are clear when comparing. 
  7. Try to get along with opposing counsel: While some are easier to get along with than others, the ability to cooperate with opposing counsel and discuss various discovery issues in the Fed.R.Civ.P. 26(f) conference (such as limits to discovery, form of production, privilege, etc.) will save considerable costs up front if the parties can agree.
  8. Allow opposing counsel to inspect and copy documents at their expense: Although most collections are predominantly in electronic form, there are still paper documents to be addressed and if you can make a non-privileged collection available for them to go through and select and copy the documents they want, that saves on your production costs.
  9. Limit e-mail production by custodians, search terms and date range: As the author noted and eDiscovery Daily previously noted, it’s not only a good idea for producing parties to limit production scope, but model orders to limit scope in patent cases are now being adopted in various jurisdictions, including Texas.
  10. Seek agreement on a narrowed privilege log and a no-waiver order: If you’re successful in #7 above, this should be part of what you try to negotiate.  It helps if both parties have similar concerns regarding the effort and cost to determine privilege and prepare a privilege log.
  11. Pursue cost-shifting for discovery: As yesterday’s post reflects, courts are more often expecting requesting parties to share in the discovery costs when the requests for information result in an undue burden or cost for the producing party.  And, as the author noted, the model order establishes specific parameters for patent cases and the expectation for requesting parties to pay for additional discovery.
  12. Stipulate to facts not in dispute: Why conduct discovery on facts not in dispute?  The author’s recommendation for early stipulations is a great idea for eliminating discovery in areas where it’s not necessary.

So, what do you think?  Did you get some good ideas?  Please share any comments you might have or if you’d like to know more about a particular topic.

eDiscovery Daily will resume with new posts on Tuesday after the Easter holiday.  Have an eggs-cellent weekend!

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: Tennessee Court Orders Split eDiscovery Costs, Plaintiff Bond for Additional Discovery
 

In considering the allocation of costs in this contentious business dispute, Tennessee Magistrate Judge Joe B. Brown (not to be confused with TV’s Judge Joe Brown) ordered the parties to split the expenses related to material they had not already produced in Lubber Inc. v. Optari, LLC, No. 3:11-0042, (M.D. Tenn. Mar. 15, 2012).

The defendants asked the court to enter a protective order that did not require them to search for electronically stored information (ESI) outside the set period of October 4, 2010 through February 8, 2011; in the alternative, they asked the court to require the plaintiff to pay for the costs of the discovery. The defendants complained that the costs of the additional searches the plaintiff requested might “run at least $10,000 and produce gigabytes of ESI material.”

Judge Brown observed that Federal Rule of Civil Procedure 26(b)(2)(C)(iii) allows for “a great deal of latitude in controlling discovery.” He also noted that the general rule of discovery is that the producing party bears the costs of discovery. Even so, Judge Brown continued by offering the following commentary on discovery costs:

“One of the concerns of discovery is the allocation of costs. In general, costs are borne by the producing party. While this works in the vast majority of cases, the requesting parties have little incentive not to ask for everything possible. This leads to interrogatories and requests for production that are expressed in the broadest possible terms.

It is the Magistrate Judge’s experience and the view of a number of economists who have studied this issue that where the requesting party bears a part of the cost of producing what they request, the amount of material requested drops significantly. When a party has to contemplate whether the last possible bit of information will cost them more than it is worth, they quit asking for items of marginal relevance. As long as requesting the last bit of information costs them nothing they have little, if any, incentive not to request it. Even if they choose never to look at it, they have put the opposing party to the cost of production. In some cases discovery becomes a tool with which to bludgeon the other side into submission. The Magistrate Judge believes that both sides are doing that in this case.”

Judge Brown denied the defendants’ motion and required each party to bear one-half of the costs of producing materials going forward.

So, what do you think?  Was the ruling to share discovery costs and the bond for compelling discovery appropriate?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).

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.