Although to some people regard ediscovery and edisclosure as possbly the most wrist-slittingly dull topic on the planet, it is currently hot news at the moment – both from a commercial perspective and the fact the Da Siva Moore case could explode into a scandal embroiling ediscovery vendors, EDD conference organisers and some US judges. In the meantime, here is the news…
• First ever ruling on predictive coding
On Monday 23rd April, Judge James H. Chamblin of the Circuit Court of Loudoun County, Virginia, issued the first known order authorizing the use of predictive coding methods over the objections of opposing counsel. This ruling will allow the defendants in Global Aerospace Inc. v. Landow Aviation Limited Partnership, et al., No. 61040, and nine other consolidated cases, to use predictive coding technology to cull large quantities of electronically stored information (ESI), distilling them down to a reasonable volume.
The consolidated case stems from a collapse of a commercial structure, which damaged hundreds of millions of dollars in personal property. The defendants are represented by Schnader Harrison Segal and Lewis LLP of Pittsburgh and Baxter, Baker, Sidle, Conn & Jones, PA of Baltimore. Schnader’s e-Discovery Practice Group, led by Thomas C. Gricks III, initially directed the collection and preservation of the ESI. When agreement on production methodology could not be reached, Schnader filed a motion for a protective order to allow the firm to use predictive coding to cull the collection.
Attorneys who wish to use predictive coding and other ediscovery technologies have often expressed concern that courts had yet to rule on any issues related to predictive coding. U.S. Magistrate Judge Andrew Peck recently allowed predictive coding to be used in the Da Silva Moore case in the Southern District of New York, but no final order has been reached in that case. The order in this case will be precedent setting, even though it has no national force of law.
The order was issued after a hearing on the defendants’ motion on Monday. The plaintiffs had argued against predictive coding, saying that it was not as effective as human review. Gricks presented the arguments for predictive coding to the court, noting that Schnader has been successful in using predictive coding to save time and money on first-pass review, which in this case will be significant. He was backed up by experts Karl Schieneman of Review Less, Timothy Opsitnick of JurInnov, and Dr. Herbert L. Roitblat of OrcaTec.
“The critical point of the order is that the Court allowed a party to choose predictive coding as its preferred method of responding to a request for production of ESI. His decision was an express recognition of the evolution of document review to deal with ever-increasing volumes of data,” said Gricks.
“We were very pleased to be able to show the scientific accuracy of predictive coding to a court in a formal hearing setting,” said Dr. Roitblat. “Keyword searching seems to be perfectly acceptable to attorneys, even though several studies have focused on its inaccuracy. If keyword searching with 20 percent proven accuracy is okay, how can predictive coding with more than 90 percent demonstrable accuracy be unacceptable? I see this as the first step in that mental barrier coming down for lawyers.”
The court ordered: “Defendants shall be allowed to proceed with the use of predictive coding for purposes of the processing and production of electronically stored information. . . . This is without prejudice to a receiving party raising with the Court an issue as to completeness or the contents of the production or the ongoing use of predictive coding.”
While the issued order was quite short, the judge said in the hearing that a producing party gets to use whatever method it wants to use to review documents. The receiving party can then raise issues if it doesn’t get what it thinks it should have in litigation. Opsitnick said, “The Judge analogized using predictive coding to a choice between using paralegals or senior partners or younger associates to review documents, which we think is correct. Unfortunately, none of the Court’s helpful explanation made it to the Order this time, but this is the first break in the predictive coding logjam.”
• New ediscovery event in Prague in November
The LawTech Europe Congress has announced its plans for its 2012 conference, which will be taking place in Prague on on Monday 12th November. The Congress is billing itself as Central and Eastern Europe’s largest and most wide-reaching annual legal event covering ediscovery, computer forensics, digital investigations, and governance. The speakers panel todate includes Browning Marean of DLA Piper, Dr Ian Walden of Queen Mary College, University of London, Nigel Murray of Huron Consulting and Chris Dale of the eDisclosure Information Project.
* LawTech Europe Congress is no relation to the LawTech Futures event