In 1997, Judge D. Brooks Smith (W.D. PA) ordered the defendant in a class action to produce its counsel’s database of potentially responsive documents or suffer the consequences. One reason I sought that order was to cut through what would otherwise have been an untenably expensive process. Here are excerpts from the transcript, and the minute entry. Continue reading
Group document reviews usually aren’t particularly ennobling. And in recent years we’ve learned that they can sometimes produce results that are worse than what we’d get from a well-trained machine.
That can change. We can use social technology to make group document reviews better, faster, and less costly, while making the reviewers’ work more professionally rewarding to them and more valuable to their employers. Continue reading
A new model of conflict resolution is gaining ground in our culture. It’s based on the idea of cooperatively restoring equilibrium instead of beating the other guy to death. Continue reading
This article is about how H5‘s rules-based approach to technology-assisted review provides a great framework for illustrating cooperation in ediscovery. But first, some context.
By this time next year, Rule 1 of the Federal Rules of Civil Procedure will have been amended to codify the principles of proportionality and cooperation between opposing counsel. Continue reading
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.
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.