Some say that predictive coding isn’t as useful to plaintiffs as it is to defendants. See, for example, this post on Linkedin.
In my view, what really matters is whether the litigant is producing or receiving the documents. Predictive coding is more useful to a producing party than to the receiving party. And, in a way, predictive coding is actually the opposite of post-production analysis. Continue reading →
In any case where emails between the parties will be discoverable, the parties should collect and jointly analyze the emails between them, before the initial scheduling conference, in order to agree on an efficient and proportional ediscovery plan and to attempt early resolution.
Even before either side does a first-pass review of their collected documents, they can easily identify which potentially-discoverable documents both sides already have in common. This process would be fast, inexpensive, and easy, and would allow new kinds of cooperation between parties.
As shown below, any federal court has the absolute statutory authority, which it should exercise immediately upon the filing of any action, to unilaterally enter an order that provides as follows (an “EDiscovery Privilege Order”):
1) No communications between any of parties hereto concerning ediscovery in this action shall waive the attorney-client privilege or work-product protection in this action or in any other federal or state proceeding, including but not limited to any federal court-annexed or federal court-mandated arbitration proceedings. Continue reading →
The following Order encourages disclosures between the parties about ediscovery by making certain communications non-discoverable and inadmissible, and by ensuring that those communications will not waive any otherwise applicable privilege or protection.
Joe Looby’s unique historical documentary, The Decade of Discovery (10th Mountain Films), shows how a few lawyers, judges, and scholars recognized the scope of the looming electronic discovery juggernaut and took the first major systematic steps to rein it in. Continue reading →
I think that the Brainspace Discovery 4 analytical engine (http://brainspace.com) is pointing the way to the future of technology-assisted review. In short, Discovery 4 exposes its inferences about which concepts indicate responsiveness and allows reviewers to adjust them. Continue reading →
Ralph Losey reviews Judge Paul Grimm’s revolutionary model ediscovery protocol order here. Under Judge Grimm’s protocol, parties first produce admissible evidence and only later produce matter “reasonably calculated.”
Judge Grimm is using his discretion to effectively rewrite the Federal Rules to harness the efficiencies that electronic discovery can provide and that proportionality requires. If his method proves out (as I believe it will, at least in larger cases) it will completely transform discovery.