The Supreme Court of Pennsylvania
The Supreme Court of Pennsylvania has adopted new e-discovery rules that expressly distance federal e-discovery jurisprudence and instead emphasize “traditional principles of proportionality under Pennsylvania law.” Notably, the new rules provide that, when weighing proportionality, parties and courts should consider electronic search and sampling technology, among other factors.
The court promulgated the new e-discovery rules June 6 as amendments to the Pennsylvania Rules of Civil Procedure. They take effect Aug. 1, 2012.
The most significant change is to Rule 4009.1, governing requests for the production of documents and things. The current rule defines “documents” as including:
electronically created data, and other compilations of data from which information can be obtained, translated, if necessary, by the respondent party or person upon whom the request or subpoena is served through detection or recovery devices into reasonably usable form. Continue reading
Now that U.S. District Judge Andrew L. Carter Jr. has affirmed the groundbreaking predictive coding order issued by U.S. Magistrate Judge Andrew J. Peck in Da Silva Moore v. Publicis Groupe, Law Technology News reporter Evan Koblentz went back and spoke to leading professionals in the legal technology field for their reactions. You can read his story here: Take Two: Reactions to ‘Da Silva Moore’ Predictive Coding Order.
One of the people Koblentz quotes is Catalyst’s own Jim Eidelman, senior search and analytics consultant on the Catalyst Search & Analytics Consulting team. These court decisions gave predictive coding “a legitimacy that was needed,” Eidelman told Koblentz. But before predictive coding can fully enter the mainstream, engineers need to work out some of the technology’s limitations, he said.
“Obviously it is all about the process, the sampling, and the use of common sense,” Eidelman said. “Some documents can only be found other ways, and predictive coding isn’t a universal solution. Clearly multi-mode searching and review is required in every case, with or without da Silva.”
Eidelman goes on to discuss what he says is “one of the big defensibility issues nobody is talking about.” That issue is pre-culling using keyword searching — something that can leave relevant documents behind and taint the process. Continue reading
It’s been a month since U.S. Magistrate Judge Andrew J. Peck issued his seminal opinion on predictive coding, Da Silva Moore v. Publicis Groupe, and it continues to make waves. Notably, it appears that U.S. District Judge Andrew L. Carter Jr. will weigh in on the issue. On March 13, he entered an order granting plaintiffs’ request to submit additional briefing on their objections to Judge Peck’s order.
A key issue Judge Carter may need to address is one given short shrift in coverage of and commentary on Judge Peck’s opinion. Understandably, most of the commentary focused on the fact that Judge Peck’s opinion marked a milestone — the first judicial opinion to recognize that computer-assisted review is an acceptable way to search for electronically stored information.
But in the course of that opinion, Judge Peck made another significant ruling. He concluded that Federal Rule of Evidence 702 and the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals do not apply to a court’s acceptance of a predictive-coding protocol.
Rule 702 and Daubert give trial judges the responsibility to act as “gatekeepers” to exclude unreliable scientific and technical expert testimony. Judge Peck reasoned that these did not apply to the Da Silva Moore case because no one was trying to put anything into evidence. Here is how he explained it: Continue reading
Magistrate Judge Andrew J. Peck issued a landmark decision in Monique Da Silva Moore v. MSL Group, filed on Feb. 24, 2012. This much-blogged-about decision made headlines as being the first judicial opinion to approve the process of “predictive coding,” which is one of the many terms people use to describe computer-assisted coding.
Well, Judge Peck did just that. As he hinted during his presentations at LegalTech, this was the first time a court had the opportunity to consider the propriety of computer-assisted coding. Without hesitation, Judge Peck ushered us into the next generation of e-discovery review—people assisted by a friendly robot. That set the e-discovery blogosphere buzzing, as Bob Ambrogi pointed out in an earlier post.
I recommend reading the decision (and its accompanying predictive-coding protocol) not for its result but for its reasoning. This is one of the best sources I have seen on the reasons for and processes underlying predictive coding. Indeed, Judge Peck provided a primer on how to conduct predictive coding that is must reading for anyone wanting to get up to speed on this process. Continue reading
Lawyers and predictive coding are like kids around the swimming hole — no one wants to be the first to dive in for fear the water is cold or it harbors scary creatures. But once someone takes the lead, dives in and declares the water fine, everyone else is quick to follow.
That is why U.S. Magistrate Judge Andrew J. Peck’s opinion published Friday marks a major milestone for the use of predictive coding in e-discovery. It is the first judicial opinion in which a court has expressly approved the use of computer-assisted review.
Just last October, a prescient Judge Peck published an article in which he described (metaphorically speaking) the lawyers standing around the predictive-coding swimming hole:
To my knowledge, no reported case (federal or state) has ruled on the use of computer-assisted coding. While anecdotally it appears that some lawyers are using predictive coding technology, it also appears that many lawyers (and their clients) are waiting for a judicial decision approving of computer-assisted review. Continue reading
U.S. Magistrate Judge Andrew J. Peck
We all talk all the time about predictive coding, but it is not often that you get perspective on it direct from the battle-scarred trenches of high-stakes litigation. Over at Law Technology News, editor Sean Doherty reports on a recent hearing before U.S. Magistrate Judge Andrew J. Peck of the Southern District of New York in which Judge Peck ordered the parties to adopt a protocol for e-discovery that includes the use of predictive coding. It appears to be the first federal case to formally endorse the use of predictive coding, Doherty writes.
The case, Monique Da Silva Moore v. Publicis Groupe, is a class action alleging widespread discrimination against women employed by one of the world’s “big four” advertising conglomerates. In a sometimes contentious Feb. 8 teleconference with Judge Peck — of which LTN has published the transcript — the parties debate sanctions and various other e-discovery issues before getting down to the brass tacks of predictive coding. It was a hearing that started with Judge Peck showing little patience for the parties’ inability to cooperate. At one point, the exasperated judge declares to plaintiffs’ counsel: Continue reading
For over a year, we have been writing about a West Virginia decision (and its progeny) that we believe went too far in making new e-discovery law. The original decision, issued May 18, 2010, was styled Mt. Hawley Insurance Co. v. Felman Production. You can read my original post at: Bad Facts Make Bad Law: ‘Mt. Hawley’ A Step Backward for Rule 502(b).
In that decision, Magistrate Judge Mary E. Stanley held that Felman had waived attorney-client privilege by inadvertently producing a smoking-gun email to counsel suggesting that it might be helpful to their insurance claim for business interruption to backdate several orders from clients. If the orders had come in while the machinery in question was under repair, that might provide support for their $38 million dollar insurance claim. You have to love their chutzpa at the very least.
The ‘smoking-gun’ email involved a furnace such as this one, at Felman’s West Virginia facility.
In my original post, I suggested that bad facts (outright fraud it seemed to me) might be responsible for what I thought was bad law. After all, the production had been overseen by a highly reputable law firm (which had no involvement in this email). Counsel had not only been diligent in trying to screen out privileged documents, but it had gone far beyond what we have typically seen elsewhere. Indeed, counsel cited over 20 steps they had taken, including a variety of review and sampling efforts: Continue reading
At her On the Case blog for Thomson Reuters, Alison Frankel has an intriguing report about a U.S. magistrate judge’s order in an e-discovery dispute that has prompted the U.S. Chamber of Commerce to leap into the fray, warning that the order, if allowed to stand, will set “a dangerous precedent” and will be of “profound significance to businesses in America.” In what Frankel describes as a “venture into the weeds of a federal district court discovery dispute,” the Chamber has filed an amicus brief in U.S. District Court in Manhattan asking a federal judge to overturn the order. The Washington Legal Foundation and the International Association of Defense Counsel have also weighed in as amicus.
Making this brouhaha even more notable is that this case is still only in the preliminary stage of litigation. It is a putative class action yet to be certified as such and one where the judge has stayed all discovery pending a decision on certification of the class.
Where, then, do the amici see such profound danger? The danger, they contend, lies in the magistrate judge’s refusal to allow the defendant to use sampling in order to limit the scope of its preservation obligation. Continue reading
The cover of the October 2011 Tennessee Bar Journal features an article, Smart Sampling in E-Discovery: Reduce Document Review Costs Withut Compromising Results. The article was co-authored by John Tredennick, Catalyst founder and CEO, and Tom Turner, president and co-founder of Document Solutions Inc.
The article addresses a problem that is becoming more common in e-discovery: As we increasingly rely on search technology to help identify relevant documents and to exclude privileged documents, how can we be assured that our searches are not overlooking key documents?
One answer to that problem is data sampling, the authors write. Sampling is the process whereby the producing party reviews a sample set of documents and extrapolates the results to the entire document population.
In the article, Tredennick and Turner explain why sampling should be used in e-discovery. They look at recent court decisions that suggest that sampling may not just be useful but also required in many circumstances. Finally, they review how sampling works at different stages of e-discovery and discuss the most effective techniques.
Read the article online at the Tennessee Bar Journal website or download the PDF.