Notable Articles in E-Discovery

Lessons Learned From Predictive Coding in 'Da Silva Moore'  (Rebecca N. Shwayri)

"In Monique Da Silva Moore v. Publicis Groupe & MSL Group, Case No. 11-cv-01279 (S.D.N.Y. Feb. 24, 2012), U.S. Magistrate Judge Andrew J. Peck for the U.S. District Court for the Southern District of New York endorsed the use of predictive coding to locate electronically stored information in a document-intensive, employment discrimination case involving 3 million emails. This is the first case to date that endorses a protocol for the use of predictive coding to locate documents relevant to litigation in ESI."

New Methods for Legal Search and Review (Ralph Losey)

"New systems of e-discovery are emerging that are designed for today’s digital world. Unlike most existing e-discovery systems, they are not mere adaptations of old paper discovery ways. The new methods use an entirely new collaborative approach and technologies, exemplified by predictive coding software. Although this paradigm shift in discovery is just starting, many of the contours of the new methods are already apparent."

A Search Terms Gam (Josh Gilliland)

"Determining search terms can sink into a voyage on the Pequodhunting a white whale. If a party obsesses over search terms, they may find themselves quoting Captain Ahab as they sink in an over-inclusive ocean of electronically stored information."

Disclosing Novel Document Review Methods (Robert Trenchard, Steven Berrent)

"Before the advent of large-scale e-discovery, lawyers had no need to disclose how they planned to review documents for responsiveness and privilege. Everyone knew there was only one way to do it. A human being looked at each record. But as e-discovery has mushroomed, new methods have been adopted to review large datasets without people personally examining every record. Such methods range from simple keyword searching, to concept grouping, to sophisticated "predictive coding."^1"

eDiscovery History: A Look Back at Zubulake (Doug Austin)

"Those of us who have been involved in litigation support and discovery management for years are fully aware of the significance of the Zubulake case and its huge impact on discovery of electronic data.  Even if you haven’t been in the industry for several years, you’ve probably heard of the case and understand that it’s a significant case.  But, do you understand just how many groundbreaking opinions resulted from that case?  For those who aren’t aware, let’s take a look back."

Keyword Search Terms: How to adequately argue for alternative search parameters (Mike Hamilton)

"Within early stages of litigation, to successfully negotiate and object to discovery parameters, such as keyword search terms, parties must have a legal justification AND provide adequate evidence to support their objection. Unsupported statements and concerns about producing “an unreasonable number of irrelevant results,” or that discovery parameters are not proportional to the matter are only conclusory statements."

An Interview with Judge Paul Grimm, Chief United States Magistrate Judge, 1 of 3

Judge Grimm has been a pretty vocal supporter of new technology trends that help shift the focus from spending extensive amounts of time and money reviewing documents to using tools to make the process more efficient. This ultimately allows legal teams to focus more on the actual heart of the matter, rather than on document review.  I'm greatly looking forward to reading installments 2 and 3 of this series.  Some excerpts are below, but you can find the full article here. "Judge Paul Grimm, Chief United States Magistrate Judge for the U.S. District Court for the District of Maryland, is a thought leader and at the forefront of knowledge in the field of electronic discovery. Judge Grimm has authored multiple case opinions that have become the basis for rule changes to the rules of civil procedure. He continues to be an expert in the field and he graciously took some time to talk to Discovery Brain about his knowledge and experience."

"...I looked into some of the issues associated with a fundamentally important area in the modern practice of civil litigation which is that discovery must be approached on a cooperative basis. That doesn’t mean that you give up meritorious argument or not have disputes, but it just means you argue over the things that are important. You cooperate on the things that are mutually beneficial to your clients. For example, look at keyword searching. If I give you just a list of keywords and tell you to go search them and you don’t have any input on that, then what’s likely to happen is you’re going to run a search that will have poor recall and precision rates that won’t produce helpful information, which will lead to disputes and further expenses. It’s much better that we cooperatively design a search methodology. It lowers costs, gets the materials produced faster and avoids motions where people run out of money. The need to cooperate is inherent in the rules of civil litigation. Those that advocate a confrontational approach to discovery for the sake of confrontation really do not understand what’s involved in the adversary system. That was emphasized in Mancia v. Mayflower Textile Services Co. decision. Thereafter my most recent discussed decision was the Victor Stanley, Inc. v. Creative Pipe Inc. case dealing with the duty to preserve."

"Part of the entire evolution, I have become interested in the fact that in 2009 a series of attorney questionnaires from a variety of sources said federal litigation is too expensive and that in turn has led to my concern with how we can manage litigation so that it is proportional to what’s at issue in a case. This means you get the right amount of discovery so that the parties have fair discovery and nothing is hidden or lost, but you don’t waste money. In no system does it make sense that you spend $5M to resolve a case that’s worth $1M. With the volume of digital evidence out there and the number of people who have the same evidence in different locations, parties spend enormous amounts of money trying to figure out what you have before they can then even talk about settlement or trial. So the real challenge for the profession and for the courts is to make it so that we don’t become so expensive that people can’t afford to come here."