E-Discovery in Employment LitigationIdentifying, Preserving, Collecting and Producing Electronically Stored Information
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
WEDNESDAY, JANUARY 9, 2013
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Danuta Bembenista Panich, Shareholder, Ogletree Deakins, Indianapolis
Niloy Ray, EDiscovery Counsel, Littler Mendelson, Chicago
Jennifer Mott Williams, Morgan Lewis & Bockius, Houston
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Title Goes Here
A Strafford Publication Webinar
January 9, 2013
Presented By:
E-Discovery in Employment Litigation
Presented By:
Danuta B. PanichOgletree Deakins Nash Smoak & Stewart, P.C.
AGENDA
� Set the stage
� Commonly requested ESI in employment matters
� Meeting preservation challenges & defending the preservation processdefending the preservation process
� Bring Your Own Device to work issues
� Managing privacy concerns
� Proportionality
5
DISCOVERY IN EMPLOYMENT LITIGATION TENDS TO BE
A ONE-WAY STREETA ONE-WAY STREET
6
VOLUME IS A PROBLEM
� American Trial Lawyers Task Force on Discovery:
“The discovery rules in particular are impractical in that they promote full
discovery as a value above almost anything else”
7
EXPENSE IS A PROBLEM
� Cartel Asset Mgt. v. Ocwen Financial Corporation,
2009 WL 2242395 (D. Colo. 2009):
“The discovery process necessarily imposes burdens
on the responding party”
Argument that certain discovery “would affect our
profitability and ability to serve our clients” was “the
e-discovery equivalent of a claim that the ‘sky is
falling’”
8
SPOLIATION CLAIMS ARE A PROBLEM
� 39% of ESI cases involve spoliation claims
� Standards vary� Proof of deliberate, bad faith conduct (Fla.)
� Some evidence of intentional misconduct (Tex.)
� Negligence (NY)� Negligence (NY)
Victor Stanlev, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497 (D. Md. 2010)
9
Even “accidental” deletion may=
spoliation & adverse inference
Cytec Carbon Fibers, LLC v. Hopkins,
2:11-cv-0217-RMG (D.S.C. Dec. 5,
2012)
10
COMMON INFORMATION
REQUESTS IN
EMPLOYMENT LITIGATION
11
STANDARD REQUESTS
� Personnel data and “files”
� Payroll
� Policies and procedures
� Decisional documentation� Decisional documentation
� Audits, surveys and training
� Other claims and litigation
� Investigatory materials
12
MORE DIFFICULT REQUESTS
� Communications
� Person-to-person (e-mail, instant messaging, text
messages, tweeting)
� Mass (web-pages, articles, webinars)
� Systems and information infrastructure
� Hidden or alternative use data
13
TANGENTIAL INFORMATION
� Document Retention Policies and Procedures
Jones v. Bremen High School Dist. 228, 2010 WL 2106640, *9 (N.D. ILL., 2010)
� What the Company has done to preserve and collect relevant ESIcollect relevant ESI
In re eBay Seller Antitrust Litigation, 2007 WL 2852364 at *2 (N.D. Cal., 2007)
Gibson v. Ford Motor Co., 2007 WL 41954 (N.D. Ga., 2007)
Cannata v. Wyndham Worldwide Corp., 2:10-cv-00068-PMP-LRL (D. Nev. August 10, 2011)
14
FLIP-SIDE OF THE COIN: DISCOVERY FROM PLAINTIFFS
� Calendars
� Diaries
� Correspondence
� Personal records of time worked
� Job search
15
PERSONAL MEDIA
� Phone/text logs
� Personal email account activity
� Social media
EEOC v. Honeybaked Ham Co. of Georgia, 2012
WL 5430974 (D. Colo. November 7, 2012)WL 5430974 (D. Colo. November 7, 2012)
Howell v. Buckeye Ranch Inc., 2012 U.S. Dist.
LEXIS 141368 (S.D. Ohio October 1, 2012)
Mailhoit v. Home Depot USA, Inc., 2012 WL
3939063 (C.D. Cal. Sept. 7, 2012)
Mancuso v. Florida Metropolitan University Inc.,
2011 WL 310726 (S.D. Fla. January 28, 2011)
16
PRESERVATION&
DEFENSE OF DEFENSE OF PROCESS
17
THE DUTY TO PRESERVE
� From where does it come?
� To whom is it owed?
� Who can enforce it?
18
PRESERVATION TRIGGERS
� Litigation is commenced
� Litigation is reasonably anticipated
19
REASONABLE ANTICIPATION
� For Plaintiffs� Decision to litigate
� Preparatory steps
�Retaining counsel�Retaining counsel
�Making a demand
Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010)
20
REASONABLE ANTICIPATION
� For Defendants
� Charge (Zubulake v. UBS Warburg LLC, 220
F.R.D. 212 (S.D.N.Y. 2003) (“Zubulake IV”))
� Demand letter (Goodman v. Praxair Services,
Inc., 632 F.Supp.2d 494 (D.Md. 2009); Major Tours,
Inc. v. Colorel, 2009 WL 2413631 (D.N.J. 2009))Inc. v. Colorel, 2009 WL 2413631 (D.N.J. 2009))
� Internal complaint (Broccoli v. Echostar
Communications Corporation, 229 F.R.D. 506 (D.Md.
2005))
� Consensus belief (Zubulake IV)
� Widespread litigation in industry (Phillip M.
Adams v. Dell, Inc., 621 F.Supp. 1173 (D.Utah 2009))
21
SCOPE OF PRESERVATION
� Key Players
� “Likely to have information relevant to the events”
� Agents
� Legal Control
� Cooperative File Sharing
22
� Databases
� Other Centrally Controlled Sites
� The Cloud
� Shared Work Spaces
Custodian Controlled
ESI SOURCES
� Custodian Controlled
� PCs and Laptops
� Portable Devices and Media
� Home Computers
� BYOD
23
CHALLENGES OF HOME COMPUTERS & BYOD
� Company does not own
� Company may not control
� Company may be responsible for
preservation & production
� Employee has significant privacy interest
24
HOME COMPUTERS AND PERSONAL DEVICES
� Review policies to help determine obligations
� Collect for preservation
� Address privacy issues via collection strategystrategy
� Vendor collection
� Self collection
� Develop forward strategies
25
DEFENSE OF PROCESS TIP
� Document decisional process
� Approach to investigation
� Rationale for selecting information types
� How identified relevant custodians
� Who was interviewed� Who was interviewed
� Who is IT liaison
� Document preservation strategies chosen
26
PRESERVATION NOTICES
Should it be in writing?
Pension Committee: YES!
Jones v. Bremen High School : Not Necessarily.
Defense of Process: ABSOLUTELY
27
PRESERVATION NOTICES
� Content
� Nature of claim and summary of allegations
� Relevant period and whether ongoing
� Sources and locations of data
� Types of information sought and definition of
relevancerelevance
� What recipient should do: preserve; collect;
notify others
� Methodology for required actions
� Accountability
� Certification
28
PRESERVATION NOTICES
� Methodology
� Dealing with metadata
� How to create .pst folders
� How to preserve ephemeral data
� Using share drives or other shared resources� Using share drives or other shared resources
� Remote collection
� Additional distribution of notices
WARNING: Cytec Carbon Fibers, LLC v. Hopkins
29
PRESERVATION NOTICES AREN’T JUST FOR INDIVIDUAL
CUSTODIANS
Remember
System Owners & IT
30
IMPLEMENTATION
Comprehensive Plan:
Haraburda v. Arcelor Mittal USA, Inc., Haraburda v. Arcelor Mittal USA, Inc.,
2011 WL 2600756 (N.D. Ind. June 28, 2011)
31
IMPLEMENTING PRESERVATION NOTICES
� Steps after issuance
� Track certifications
� Track compliance
� Prompt remedial action
� Regular attorney oversight
� Issue reminders
� Prioritize for collection
� Address replacement custodians
� Document for defense of process
32
PRESERVATION NOTICES
Remember: Notices, reminders, and
steps taken may be discoverable!
� Oleksy v. General Electric, 06-C-1245 (N.D. Ill. Oct. 3, � Oleksy v. General Electric, 06-C-1245 (N.D. Ill. Oct. 3, 2011) (even if privileged, subject to production because of spoliation)
� Chang v. United States, No. 02-2010 (D.D.C. Aug. 19, 2010) (not privileged)
� Major Tours Inc. v. Colorel, 2009 WL 2413631 (D.N.J. Aug. 4, 2009) (privileged unless spoliation)
33
ADDITIONAL CRITICAL PRESERVATION STEPS
� Automated functions� Auto-delete
� Size limits
� Back-up
Apple Inc. v. Samsung Elecs. Co., Case No.: 11-CV-01846-LHK Apple Inc. v. Samsung Elecs. Co., Case No.: 11-CV-01846-LHK (N.D. Cal. 2012)
Voom HD Holdings, LLC v Echostar Satellite, L.L.C., 2010 N.Y. Misc. LEXIS 6711, 47-50 (N.Y. Sup. Ct. Nov. 3, 2010)
Advanced Micro Devices v. Intel Corp. (In re Intel Corp. Microprocessor Antitrust Litig.), 2008 U.S. Dist. LEXIS 98898 (D. Del. May 9, 2008)
Treppel v. Biovail Corp., 249 F.R.D. 111 (S.D.N.Y. 2008)
34
ADDITIONAL PRESERVATION STEPS
� Suspension of retention period expiration
� Sometimes ephemeral system � Sometimes ephemeral system information� Access logs
� Internet use histories
� Audit trails
35
CAUTION: ARCHIVING DATA
Often undertaken to preserve without impacting system functionality.
“if a party creates its own burden or expense by converting into an inaccessible format data that it should have reasonably foreseen would be discoverable material…then it should not be discoverable material…then it should not be entitled to shift the costs of restoring and searching the data”
Orbit One Communications, Inc. v. Numerex
Corp., et. al., 271 F.R.D. 429, 437
(S.D.N.Y. 2010) citing to Quinby v.
WESTLB AG, 245 F.R.D. 94, 104
(S.D.N.Y. 2006)
36
IS “PROPORTIONALITY” A FACTOR?
� Yes
� Victor Stanley, Inc.
� Rimkus Consulting Group, Inc. v.
Cammarata, 688 F. Supp. 2d 598 (S.D. Tex. 2010)
No� No
� Pippins v. KPMG LLP, 2011 WL 4701849 (S.D.
N.Y. October 7, 2011)
� Orbit One Commc'ns, Inc. v. Numerex Corp.,
271 F.R.D. 429, 436 (S.D.N.Y. 2010)
37
26(F)
CONFERENCES
REQUIREMENTS & STRATEGIES
Presented by:Presented by:Presented by:Presented by:
REQUIREMENTS & STRATEGIES
Niloy RayNiloy RayNiloy RayNiloy RayE-Discovery Counsel
Littler Mendelson, P.C.
Chicago, IL
312.795.3277
January 2013January 2013January 2013January 2013
RULE 26(f) MEET-&-CONFERS
BASIC RULES & EXPECTATIONS
In the electronic age, this meet and confer should include a discussion on whether each side possesses
information in electronic form, whether they intend to produce such material [and so on].
- In re Bristol-Meyers Squibb Sec. Litig., 205 F.R.D. 437 (D.N.J. 2002)
At the initial status conference, counsel must be prepared to discuss what agreements they have reached
regarding discovery of Electronically Stored Information ("ESI") and what area of disagreement they have
with regard to discovery of ESI.
-Merriman v. Minn. Life Ins. Co., 2012 U.S. Dist. LEXIS 124854 (E.D. Wisc. 2012)
RULE 26(f) MEET-&-CONFERS
PREPARATION
It appears that Defendants failed to meet their Federal Rule of Civil Procedure 26(f) ESI obligations at theIt appears that Defendants failed to meet their Federal Rule of Civil Procedure 26(f) ESI obligations at the
outset of the case. The briefing discloses that Defendants' counsel was not aware of the structure of
Defendants' computer systems until recently. It is inappropriate for Defendants to only now—three years
after the case was filed and after discovery has closed—investigate their electronic systems.
- News America Marketing v. Floorgraphics, 2012 U.S. Dist. LEXIS 76543 (D.N.J. 2012)
The court opened the door to spoliation-related discovery, ordering the deposition of a 30(b)(6) witness to
“bind the company on electronic discovery disputes.”
RULE 26(f) MEET-&-CONFERS
COOPERATION & TRANSPARENCY
If the parties are unable to telephonically conduct their conference and jointly file a Rule 26(f) report …
they will be required to attend a Rule 26(f) conference in person.
- Jacobs v. Lambda Research, 2012 U.S. Dist. LEXIS 31066 (S.D. Ohio 2012)
Cooperation … requires forgoing the short term tactical advantages afforded one party to information
asymmetry so that … parties communicate candidly enough to identify the appropriate boundaries of
discovery. … In place of gamesmanship, cooperation substitutes transparency and communication.
- "The Case for Cooperation," 10 SEDONA CONF. J. 339, 344-45 (2009)1
1 See Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 2568431, at *2 (S.D.N.Y. Aug. 13, 2009); In re Direct Sw., Inc., Fair Labor Standards Act (FLSA) Litig., 2009 WL 2461716, at *1, 2
(E.D. La. Aug. 7, 2009); Wells Fargo Bank, N.A. v. LaSalle Bank Nat’l Ass’n, No. 3:07-cv-449, 2009 WL 2243854, at *2 (S.D. Ohio July 24, 2009); Dunkin’ Donuts Franchised Rests. LLC
v. Grand Cen. Donuts, Inc., 2009 WL 1750348, at *4 (E.D.N.Y. June 19, 2009); Ford Motor Co. v. Edgewood Props., Inc., 257 F.R.D. 418, 424-25, 427 (D.N.J. May 19, 2009); Newman v.
Borders, Inc., 257 F.R.D. 1, 3 (D.D.C. Apr. 6, 2009); William A. Gross Const. Associates, Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134, 136 (S.D.N.Y. March 19, 2009); S.E.C. v.
Collins & Aikman Corp., 256 F.R.D. 403, 415 (S.D.N.Y. Jan. 13, 2009); Covad Commc’ns. Co. v. Revonet, Inc., 254 F.R.D. 147, 148-49 (D.D.C. Dec. 24 2008); Gipson v. Sw. Bell Tel.
Co., Civ. No. 08-2017, 2008 U.S. Dist. LEXIS 103822, at *4 (D. Kan. Dec. 23, 2008); Aguilar v. Immigration and Customs Enforcement Div. of U.S. Dept. of Homeland Sec., 255 F.R.D.
350, 353-56, 358-59, 362 (S.D.N.Y. Nov. 21, 2008); Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354, 359, 363 (D. Md. 2008).; Mancia v. Mayflower Textile Servs. Co., 253
F.R.D. 354, 363 (D. Md. 2008).
RULE 26(f) MEET-&-CONFERS
KEY STRATEGIC OBJECTIVE
“JUST, SPEEDY, AND INEXPENSIVE”
RULE 26(f) MEET-&-CONFERS
MANAGING SCOPE
the timing and
sequence of
discoverySunflower Elec.
Power Corp. v.
Sebelius, 2009 U.S.
practical
agreement on
facts truly at issue
spanning custodian set
Sebelius, 2009 U.S.
Dist. LEXIS 22775
(D. Kan. 2009)
agreement on
search terms,
date ranges,
key players
and the likeRomero v. Allstate
Ins. Co., 271 F.R.D.
96 (E.D. Pa. 2010)
phased approach
to expert
discoveryFiber Optic Designs v.
New England Pottery,
(D. Colo. 2009)
data sources
timespans
RULE 26(f) MEET-&-CONFERS
CONTROLLING PRODUCTION
Defendant has provided no reason for not producing the [ESI] in electronic format other than inconvenience
and Defendant's mistaken belief that Plaintiff's format request came after Defendant had begun production.
- Lawson v. Sun Microsystems, 2007 U.S. Dist. LEXIS 65530 (S.D. Ind. 2007)
The Court is therefore presented with a defendant in a predicament essentially of its own making. Kanbar
faces the task of sorting page by page through a mass of documents in a limited period of time. However,
this situation was largely the result of Kanbar's own actions, [including] the lack of a demand for electronic
production … . [I]ts motion to compel 3M to "organize" or "itemize" the documents is DENIED.
- 3M Co. v. Kanbar, 2007 U.S. Dist. LEXIS 45232 (N.D. Cal. 2007)
Plaintiff argues that defendant should be required to produce responsive emails in their native file format.
Defendant … argues that plaintiff did not raise the issue [at the meet-&-confer]. The parties have a mutual
obligation to discuss this issue at the [meet-&-confer]. [M]etadata for only one document will be required.
- Brinckerhoff v. Paradise, 2010 U.S. Dist. LEXIS 126895 (E.D. Cal. 2010)
Most metadata is of limited evidentiary value, and reviewing it can waste litigation resources. … ImPax has
not demonstrated a particularized need for the metadata. Therefore, [the motion to compel] is denied.
-Wyeth v. ImPax Laboratories, 248 F.R.D. 169 (D. Del. 2006)
In light of the dubious value of metadata and plaintiffs' total failure to explain its relevance to the claims
and defenses in this action, plaintiffs' application to compel its production is denied.
- Kingsway Financial v. PriceWaterhouse-Coopers, 2008 U.S. Dist. LEXIS 105222 (S.D.N.Y. 2008)
RULE 26(f) MEET-&-CONFERS
PROTECTING THE CLIENT
This lawsuit demonstrates why it is so important that parties freely discuss their ESI early in the evolution ofThis lawsuit demonstrates why it is so important that parties freely discuss their ESI early in the evolution of
a case. Had that been done … the parties might have been able to work out many, if not all, of their
differences without court involvement or additional expense, thereby furthering the "just, speedy, and
inexpensive determination" of this case. Instead, these proceedings have now been bogged down in
expensive and time-consuming litigation of electronic discovery issues only tangentially related to the
underlying merits … .
- Aguilar v. Immigration & Customs Enforcement, 255 F.R.D. 350 (S.D.N.Y. 2008)
RULE 26(f) MEET-&-CONFERS
Developing a reasonably complete discovery plan is the responsibility of both parties. The parties in the
present case did not live up to the requirements of the rule. When the lawyers in this case conferred [the ESI
at issue] should have been discussed and included in the discovery plan. It is the failure of the parties to do
[so] that brings us to this controversy. [T]he sanction indicated should … be enforced.
- Argus & Assocs. v. Prof'l Benefits Servs., 2009 U.S. Dist. LEXIS 39437 (E.D. Mich. 2009)
- [T]he Court is troubled by the nature of the parties’ efforts to “meet and confer” on specific issues.
- AZ purported to embrace the requirements of Rule 26 and the Sedona Principles. However, the reality was
to the contrary. AZ [] failed to bring in appropriate personnel to the table at appropriate times … . AZ has
been “purposefully sluggish” in making effective production. [S]anctions are warranted.
- In re Seroquel Liab. Litig., 244 F.R.D. 650 (M.D. Fla. 2007)
counsel’s “technical incompetence, … technical ignorance or mistake” is no defense to discovery deficiencies
- Garcia v. Berkshire Life Ins. Co., 2007 U.S. Dist. LEXIS 86639 (D. Colo.)
attorney’s “claim that he is … computer illiterate … is frankly ludicrous”
- Martin v. Northwestern Mutual, 2006 U.S. Dist. LEXIS 2866 (M.D. Fla.)
lawyer’s “inhibited ability to participate meaningfully in electronic discovery” causes reduction in fees awarded
- Chen v. Dougherty, 2009 U.S. Dist. LEXIS 131573 (W.D. Wash.)
PREDICTIVE CODING IN EMPLOYMENT LITIGATION
Morgan, Lewis & Bockius LLP
Jennifer Mott Williams
www.morganlewis.com
January 9, 2013
Predictive Coding
• What it is NOT:
– Artificial intelligence
– The end of attorneys reviewing documents
© Morgan, Lewis & Bockius LLP
– Perfect, but it is far superior to human-only, linear review
• What is it?
– Computer-Assisted Review
– Iterative, Smart, Prioritized Review
– Faster, More Accurate & Less Expensive
49
Example of a Predictive Coding Workflow
• Lawyer or team of lawyers review and code sample
documents often called the “seed set”
• Based upon the coding, the system “learns” what is
responsive/non-responsive
© Morgan, Lewis & Bockius LLP
responsive/non-responsive
• Computer system applies the “logic” to the remaining
population, predicting documents that are likely responsive
• New suggested documents are reviewed to test the logic and
the cycle is repeated until desired levels are achieved
• Statistical validation of non-responsive ESI50
Is Predictive Coding Right For Your Case?
Keep In Mind General Discovery Principles:
1. FRCP 1 – Will predictive coding contribute to the “just,
speedy, and inexpensive” resolution of the case?
© Morgan, Lewis & Bockius LLP
speedy, and inexpensive” resolution of the case?
2. FRCP 26 – Will predictive coding address proportionality and cost concerns?
51
Considerations to Weigh in Determining ifPredictive Coding is Right for your Case
• Client acceptance
• Type of case
• The volume of data anticipated
© Morgan, Lewis & Bockius LLP
• The volume of data anticipated
• The type of data involved
• Amount in controversy
• Number of custodians
• Review goals
52
If Predictive Coding Is Not Right for Your Case,
You May Need to Be Prepared to Explain Why
TSI, Inc. v. Azbil Bio Vigilant, Inc. (D. Ariz.) – Joint Submission
on Predictive Coding
• Court had asked parties to consider whether predictive coding
should be used for email production
© Morgan, Lewis & Bockius LLP
• Jointly agreed stipulated procedures were better than
predictive coding
Eorhb, Inc. v. HOA Holdings LLC (Del. Ch.) – Oct. 15, 2012
Transcript
• “I would like you all, if you do not want to use predictive
coding, to show cause why this is not a case where predictive
coding is the way to go.”53
Defensibility of Predictive Coding
• Defensibility
– Predictive coding not at issue – Humans review and determine relevancy of computer-suggested
documents assisted by Predictive Coding
© Morgan, Lewis & Bockius LLP
documents assisted by Predictive Coding
– For documents not reviewed – Issue is sampling
– Statistical sampling widely accepted – Scientific method supported by expert testimony
54
Defensibility
• Defensibility (cont.)
– Case law growing on the use of sampling techniques
• Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309 (S.D.N.Y. 2003)
– Court accepted the use of sampling due to the prospect of
© Morgan, Lewis & Bockius LLP
– Court accepted the use of sampling due to the prospect of
having to restore thousands of archived data tapes.
• Mt. Hawley Ins. Co. v. Felman Prod. Inc. 2010 WL 1990555 (S.D.
W.Va. May 18, 2010)
– “Sampling is a critical quality control process that should be
conducted throughout the review.”
• In re Seroquel Prods. Liab. Litig., 244 F.R.D. 650 (M.D. Fla. 2007)
– Court instructed “common sense dictates that sampling and
other quality assurance techniques must be employed to meet
requirements of completeness.”
55
Defensibility
• Defensibility (cont.)
– Endorsement by legal community
– Growing cases discussing Predictive Coding
• Da Silva Moore v. Publicis Groupe (S.D.N.Y.)
© Morgan, Lewis & Bockius LLP
• Da Silva Moore v. Publicis Groupe (S.D.N.Y.)
• Kleen Products, LLC, v. Packaging Corporation of America (N.D.
Ill.)
• Global Aerospace Inc. v. Landow Aviation, L.P. dba Dulles Jet
Center (Vir. Cir. Ct.)
• In re: Actos Products Liability Litigation (W.D. La.)
• Federal Housing Finance Agency v. JP Morgan Chase & Co.(S.D.N.Y.)
• Eorhb, Inc. v. HOA Holdings LLC (Del. Ch.)56
Defensibility – Predictive Coding is As Accurate if Not More Accurate than Pure
Linear Review
“There is not one single measure for which manual review is significantly better than technology – assisted review.”
– Maura Grossman & Gordon Cormack, Technology Assisted Review in E-Discovery Can be More Effective and More Efficient than Exhaustive Manual Review, 17 Rich. J. L. & Tech Issue 3 (2011).
© Morgan, Lewis & Bockius LLP
Manual Review, 17 Rich. J. L. & Tech Issue 3 (2011).
“On every measure, the performance of the two computer systems was at least as accurate… as that of a human review.”
– Herbert L. Roitblat, Ann Kershaw and Patrick Oot, Document Categorization vs. Manual Review, 61 J. of Am. Soc’y for Info. Sci. &
Tech. 70 (2010).
“Statistics clearly show that computerized searches are at least as accurate, if not more so, than manual review.”
− Da Silva Moore v. Publicis Groupe
57
Partnering with Your Opponent
• Cooperation with the other side no matter the protocol
– Edelen v. Campbell Soup Co., 265 F.R.D. 676 (N.D. Ga. 2010) –failure to cooperate on search terms, timeframe, and number of custodians led to sanctions
© Morgan, Lewis & Bockius LLP
• Discussion at the Rule 26(f) Conference
• Courts referencing discussion in Local Rules
– S.D.N.Y. Complex Civil Cases
• Consider “machine learning, or other advanced analytic tools”
– N.D. Cal. Guidelines for the Discovery of Electronically Stored Information
• Methods and technology for searching for relevant information, including sampling methods
58
Partnering with Your Opponent - Disclosure
• Disclosure
– Whether and when to disclose the use of Predictive Coding
– Split emerging within the profession on what level of disclosure is necessary
© Morgan, Lewis & Bockius LLP
is necessary
– Ultimately, need to determine client’s comfort level with disclosure of confidential, irrelevant materials before full disclosure
• Potential for inviting an amended complaint
59
Review Strategies − Quick Peek
• Rule 502(d) Orders – Rajala v. McGuire Woods, LLP (D. Kan.)
– Does not require inadvertence
– Does not require reasonableness
– Does not require promptness
© Morgan, Lewis & Bockius LLP
– Does not require promptness
• Nondisclosure & Confidentiality Agreement
“Agree not to disclose information to Co-Counsel, client, any Party, or any
third party without first obtaining written consent of [the Producing Party]” – In re Actos
Privileged information completely withheld
– In re Actos
– Da Silva Moore v. Publicis
• Logging sensitive documents
– Global Aerospace Inc. v. Landow Aviation, L.P.60
The Role Defense of Process Plays Generally
• Not the only instance where you might have to defend your process
• Rule 26(g) requires responses “to the best of the persons’ knowledge, information and belief formed after a reasonableinquiry.”
• Search Terms required defense of process
© Morgan, Lewis & Bockius LLP
• Search Terms required defense of process
Surowiec v. Capital Title Agency, ncI., 790 F. Supp. 2d 997 (D. Ariz. 2011)
-potential searches must be quality-control tested
William A. Gross Contsr. Assocs., Inc. v. Am. Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009)
-proposed search methodology “must be quality control tested to assure
accuracy in retrieval and elimination of false positives”
61
Other Instances of Defense of Process
Discovery motions require defense of process
• Kandel v. Brother Int’l Corp., 683 F. Supp. 2d 1076 (C.D. Cal. 2010)Assessing steps taken by party in determining whether privilege
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Assessing steps taken by party in determining whether privilege not waived
• Amobi v. D.C. Dept. of Corrections, 262 F.R.D. 45 (D.D.C. 2009)Offered no explanation of methodology and to review documents so privilege waived
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The Role Defense of Process Plays in Predictive Coding
As in other instances, be prepared to explain the process used
• Da Silva Moore v. Publicis Groupe
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• Da Silva Moore v. Publicis Groupe“I will want to know what was done and why that produced defensible results”
“Proof of a valid ‘process,’ including quality control testing, also will beimportant.”
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CONTACTS
Jennifer Mott Williams
Attorney, Morgan, Lewis & Bockius LLP
eData Practice Group
713.890.5788
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713.890.5788
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