All posts tagged ediscovery case law

Australia Gets in the Predictive Coding Game

G’day, mate!

As we have said before, predictive coding (also known as Technology Assisted Review or TAR) is taking the globe by storm. First the United States, then Ireland and England, and now Australia. Ediscovery practitioners take heed: significant predictive coding developments are afoot in Australia.

(Special Note: If you are looking to stay informed on ediscovery around the world, don’t miss this whitepaper, “A Practical Guide to Cross-Border Ediscovery.”)

Predictive Coding: From New York City to the Australian Outback

Late last year, Australia joined the list of countries tackling predictive coding issues when Justice Vickery from the Supreme Court of the State of Victoria issued a key opinion in McConnell Dowell Constructors v. Santam.

In this case, the parties faced massive costs to review 1,400,000 documents, and they could not agree on a review method. Justice Vickery appointed a Special Referee to deliver a report to the court addressing the appropriate management of discovery in the proceeding. Relying on previous TAR decisions from the U.S. and Europe, as well as the Special Referee’s recommendation to use TAR, the court approved predictive coding as an effective method of document review when “the cost of traditional discovery processes in a case such as this dictates that [such processes] are not appropriate.”

Notably, the McConnell opinion made it clear that the courts, not the parties, would have the final determination in whether predictive coding will be employed in civil proceedings in Victoria state court. Specifically, Justice Vickery held that “the Court may order discovery by technology assisted review, whether or not it is consented to by the parties” in cases where the volume of ESI is substantial and “the costs of research may not be reasonable and proportionate.”

However, McConnell was not Victorian litigators’ first exposure to TAR in the courtroom. Three months before the McConnell decision, the Supreme Court of Victoria released a Standard Operating Procedure (TEC SOP 5 [TAR]) to provide litigants with interim measures for using TAR in construction and engineering cases. On January 30, 2017, the court replaced TEC SOP 5 with Technology in Civil Litigation Practice Note SC Gen 5, opening up TAR for general use in Victoria’s commercial courts.

Consent or No Consent: That is the Predictive Coding Question

While predictive coding is gaining traction as an effective tool to tackle massive document sets, there is no bright line on whether a party can be required to use TAR. Contrary to the holding in McConnell, U.S. courts have not compelled parties to leverage TAR. In 2016, two key opinions, Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. Aug. 1, 2016), and In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., 2016 BL 347130 (N.D. Cal. Oct. 14, 2016), acknowledged the efficiencies associated with predictive coding, but refused to force a party to leverage the cutting-edge technology. That being said, U.S. attorneys need to be prepared that the days of insisting on manual review may one day soon be bygone. As noted by Judge Peck in Hyles, “[t]here may come a time when . . . it might be unreasonable for a party to refuse to use TAR . . . [but][w]e are not there yet.”

What’s Next for the Land Down Under?

Victoria is not the only state in Australia getting in on the ediscovery action. Courts in New South Wales abide by their state Supreme Court’s 2008 Practice Note No. SC Gen & for Use of Technology encouraging parties to consider technology to discover and inspect documents. While this practice note and other similar guidance in the Australian federal court system do not specifically reference TAR, savvy Australian practitioners know that this will likely change in the near future.

Looking to stay up to speed on global ediscovery practices? Don’t miss this whitepaper, “A Practical Guide to Cross-Border Ediscovery.”

2016: Ediscovery Year in Review

All good things must come to an end; even a great year in ediscovery.

As another year wraps up, we look back at a year that brought great changes to ediscovery. There is no better time than now to remember the highlights of ediscovery case law in 2016. The arrival of the FRCP amendments in December 2015 altered ediscovery practice and set new precedents. The duty to preserve, a new emphasis on proportionality and the intent to deprive dominated ediscovery judicial opinions as courts applied the new FRCP amendments.

Beyond the domination of preservation, proportionality and production, Kroll Ontrack’s analysis of 57 significant state and federal ediscovery opinions led to the classification of 4 major categories that arose most commonly in 2016 ediscovery case law. The most important of these cases are summarized in Kroll Ontrack’s guide, Top Ediscovery Cases of 2016. This guide includes the following topics and cases:

56 percent of opinions dealt with disputes involving production and the methods used, and arguments about proportionality and the scope of discovery.

  • Fulton v. Livingston Fin., 2016 U.S. Dist. LEXIS 96825 (W.D. Wash. July 25, 2016)
  • Carr v. State Farm Mut. Auto. Ins., 312 F.R.D. 459 (N.D. Tex. 2015)
  • Jackson v. E-Z-Go. Div. of Textron, 2016 U.S. Dist. LEXIS 146951 (W.D. Ky. Oct. 24, 2016)
  • Gilead Scis. v. Merck, 2016 U.S. Dist. LEXIS 5616 (N.D. Cal. Jan. 13, 2016)

32 percent of opinions dealt with disputes involving preservation, spoliation and motions for sanctions.

  • Orchestratehr v. Trombetta, 2016 U.S. Dist. LEXIS 51405 (N.D. Tex. Apr. 18, 2016)
  • Living Color Enters. v. New Era Aquaculture, 2016 U.S. Dist. LEXIS 39113 (S.D. Fla. Mar. 22, 2016)
  • Marten Transp. v. Plattform Adver., 2016 U.S. Dist. LEXIS 15098 (D. Kan. Feb. 8, 2016)
  • GN Netcom v. Plantronics, 2016 U.S. Dist. LEXIS 93299 (D. Del. July 12, 2016)
  • Cat3 v. Black Lineage, 2016 U.S. Dist. LEXIS 3618 (S.D.N.Y. Jan. 12, 2016)

4 percent of opinions addressed cost considerations, such as cost shifting and taxation of costs.

  • R. Med. Emergency Grp. v. Iglesia Episcopal Puertorriqueña, 2016 U.S. Dist. LEXIS 99391 (D.P.R. July 26, 2016)
  • Elkharwily v. Franciscan Health Sys. 2016 U.S. Dist. LEXIS 99795 (W.D. Wash. July 29, 2016)

9 percent of opinions discussed procedural issues, such as search and predictive coding protocols.

  • Dynamo Holdings v. Comm’r of Internal Revenue, 2016 WL 4204067 (T.C. July 13, 2016)
  • Hyles v. New York City, 2016 U.S. Dist. LEXIS 100390 (S.D.N.Y. Aug. 1, 2016)
  • Pyle v. Selective Ins. Co. of Am., 2016 U.S. Dist. LEXIS 140789 (W.D. Pa. Sept. 30, 2016)
  • In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., 2016 U.S. Dist. LEXIS 144925 (N.D. Cal. Oct. 14, 2016)

The guide also includes a special section on International Predictive Coding, discussing the major opinions to emerge from overseas.

  • Pyrrho Investments Ltd. v. MWB property Ltd., [2016] EWHC 256 (Ch)

Looking for more? Check out our Top Ediscovery Cases of 2016 guide to review these significant ediscovery cases.

U.K. High Court Approves the Use of Predictive Coding in Litigation

UK Predictive Coding

Legal technology providers in the U.K. have a lot to celebrate as the English High Court recently approved the use of predictive coding for disclosure in litigation.

The judgment, handed down by Master Matthews in Pyrrho Investments Ltd. v. MWB Property Ltd. [2016] EWHC 256 (Ch), gave official judicial authorization for the use of predictive coding in High Court proceedings. Summing up his decision, Master Matthews stated that predictive coding is just as accurate, if not more so than a manual review using keyword searches, mirroring the sentiments shared by Judge Peck’s 2012 opinion in Da Silva Moore v. Publicis Groupe regarding the appropriateness of predictive coding and its potential benefits. Master Matthews also estimated that predictive coding would offer significant cost savings in this particular case and that the possible disclosure of over two million documents done via traditional manual review would be disproportionate and “unreasonable.”

To read a short summary of the judgment, please click here, or read the judgment in full here.

Predictive Coding Goes Global

Predictive coding has become a global phenomenon over the past few years. The United States and Ireland have led the way in giving judicial approval to predictive coding, with Judge Peck’s Da Silva Moore opinion setting the predictive coding tone in 2012. Since then, the United States has continued to adopt the use of predictive coding, with a number of substantive cases further establishing its use. Ireland recently embraced predictive coding as well in the 2015 Irish Bank Resolution Corporation Ltd & ors v. Quinn & ors case holding that, in the discovery of large data sets, technology-assisted review using predictive coding is at least as accurate as, and probably more accurate than, the manual or linear method of identifying relevant documents. Not surprisingly, the Pyrrho judgment in the UK references these cases in detail.

Combatting Predictive Coding Objections

Despite these cases and the ever-increasing sophistication of the technology itself, the UK law community has been somewhat reluctant to make use of the technology, as explored in this study by Kroll Ontrack Legal Consultant and former litigation lawyer Hitesh Chowdhry. In Chowdhry’s white paper, “Rage against the Machine; Attitudes to Predictive Coding Amongst UK Lawyers,” he notes that his study revealed that the main barriers to adopting predictive coding technology were:

  • Risk aversion and mistrust of the technology’s accuracy
  • Belief that predictive coding would have a negative effect on revenue
  • Satisfaction with existing methods and a belief that existing practices offered more accuracy than studies have suggested
  • Insufficient understanding and knowledge of the complex predictive coding process
  • Diffusion among professionals

The UK Pyrrho judgment counters many of the fears uncovered in Chowdhry’s study by stating that the technology is accurate and offers cost savings. The efficiency of TAR and the cost savings offered by predictive coding will undoubtedly be popular with clients and potentially will give a competitive edge in winning work. Hopefully, this ruling will encourage more UK firms to take advantage of the benefits offered by predictive coding.

For more information about this technology, read Kroll Ontrack’s e-book, “Mastering Predictive Coding: The Ultimate Guide.”

Top 5 Ediscovery Case Summaries – August 2013

Read the very latest ediscovery case law summaries

Court Declines to Rule on Discovery Dispute until Parties Meet and Confer                                                                                                                              AMEC Env’t & Infrastructure, Inc. v. Geosyntec Consultants, Inc., 2013 WL 3923459 (N.D. Cal. July 26, 2013).

Court References Defendant’s Previous Spoliation in Granting Sanctions Hart v. Dillon Cos., 2013 WL 3442555 (D. Colo. July 9, 2013).

Negligence Alone is not Enough for Spoliation Sanctions                      Sekisui Am. Corp. v. Hart, 2013 WL 2951924 (S.D.N.Y. June 10, 2013).

Stored Communications Act Can Block Employer Access to Personal Data on Company-Issued Devices                                                                                Lazette v. Kulmatycki, 2013 WL 2455937 (N.D. Ohio June 5, 2013).

Proportionality Must Be Considered for Spoliation Sanctions                     PTSI, Inc. v. Haley, 2013 WL 2285109 (Pa. Super. Ct. May 24, 2013).

Top 5 Ediscovery Case Summaries – June 2013

Read the very latest ediscovery case law summaries

Below are the top 5 ediscovery case law summaries for June, 2013.

Court Denies E. & J. Gallo Taxation Costs Spent Decanting ESI into Indexed, Flattened Form
Country Vintner of NC, LLC v. E. & J. Gallo Winery, Inc., No. 12-2074 (4th Cir. Apr. 29, 2013).

Race Tires America, Inc. Approach Adopted in Taxation Case
Phillips v. WellPoint, Inc., 2013 WL 2147560 (S.D. Ill. May 16, 2013).

Court Denies Taxation and Cost-Shifting of Ediscovery Costs
W Holding Co., Inc. v. Chartis Ins. Co. of Puerto Rico, 2013 WL 1352426 (D.P.R. Apr., 3, 2013).

Both Parties Cry Foul Regarding Production Adequacy, Cooperation; Court Says Work it Out
Procongps, Inc. v. Skypatrol, LLC, No. C 11-3975 (N.D. Cal. Apr. 1, 2013).

Mere Facebook Friendship Does Not Amount to Impartiality by Judge
Youkers v. State, 2013 WL 2077196 (Tex. App.—Dallas May 15, 2013).

To check out more ediscovery case summaries, visit our Case Law library.

Top 5 Ediscovery Case Summaries – April 2013

Read the very latest ediscovery case law summaries

Below are the top 5 ediscovery case law summaries for April, 2013.

Court Denies Motion to Compel Social Media Data
Potts v. Dollar Tree Stores, Inc., 2013 WL 1176504 (M.D. Tenn. March 20, 2013).

Insufficiently Detailed “Image Processing” Not Included in Taxable Costs
Taylor v. Mitre Corp., 2013 WL 588763 (E.D. Va. Feb. 13, 2013).

“Careless” Deletion of ESI Warrants Exclusion of Evidence, Adverse Inference
E.E.O.C. v. Ventura Corp, Ltd., 2013 WL 550550 (D.Puerto Rico Feb. 12, 2013).

Court Denies Motion for Protective Order, Cost-Shifting
Juster Acquisition Co., LLC v. N. Hudson Sewerage Auth., 2013 WL 541972 (D.N.J. Feb. 11, 2013).

Discovery Requests Outweighing Amount in Controversy are Unduly Burdensome
Conn. Gen. Life Ins. Co. v. Scheib, 2013 WL 485846 (S.D. Cal. Feb. 6, 2013).

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To the Merits, At Last: Judge Peck Recusal is Denied

ediscovery case law news-Judge Peck recusal denied

Ediscovery case law enthusiasts, gather ‘round – thanks to the Second Circuit Court of Appeals, the Da Silva Moore recusal “sideshow” is finally dead in the water.

As first reported earlier today by the friendly folks at IT-Lex, on April 10, 2013 in an order of notable brevity, Judge Jane A. Restani denied the petitioners’ request for theJudge Peck Recusal is Denied recusal of Judge Andrew J. Peck, stating simply that: “Petitioners have not ‘clearly and indisputably demonstrate[d] that [Magistrate Judge Peck] abused [his] discretion’ in denying their district court recusal motion… or that the district court erred in overruling their objection to that decision.”

At last, the ediscovery community is free of this distracting drama. Cue the music!

Da Silva Moore’s Affect on Ediscovery

The recusal motions that clouded Da Silva Moore created nothing but distraction. Judges, lawyers and providers in the legal ediscovery industry are just as connected as the clients we serve. In ediscovery’s constant state of change, it’s important to remember that ideas precede growth – that leaving room for objective, non-confidential commentary and brainstorming in publications and at conferences is not only appropriate, but imperative for the development of standards, best practices and new technology innovations. Hopefully this short and succinct opinion from the Second Circuit is a clear call that our community’s focus should lie in progressing substantive ediscovery law and practices, not discord and frivolity.

Personally, I look forward to the future of ediscovery jurisprudence from Judge Peck. Like my Kindergarten teacher or childhood dentist, I never want to see him retire. A true trailblazer, in 1995, Judge Peck issued one of the first cases to order the discovery of electronic data (Anti-Monopoly, Inc. v. Hasbro, Inc.), and in 2012 he paved the way for cutting-edge machine learning technology to be used in legal document review through the Da Silva Moore case. What’s next? I can’t wait to discuss more about it with Judge Peck, Ralph Losey, and everyone else in this exceptional legal technology community.

Cost-Shifting in the Era of Big Data

Ediscovery - Cost-shifting in the era of big data ediscovery

As children, we’re taught the importance of fair play. As adults, we often learn that “fairness” is a rather amorphous concept. In litigation specifically, what’s “fair” tends to vary greatly by context, circumstance, and the arguments of the individual asserting that something is (or isn’t) fair.

In the context of ediscovery, however, the Eastern District of Pennsylvania sent an important message to litigants in Vaughn v. L.A. Fitness: “[D]iscovery need not be perfect, but discovery must be fair.” In Vaughn, the court asserted that “[D]iscovery burdens should not force either party to succumb to a settlement that is based on the cost of litigation rather than the merits of the case” and ordered the plaintiffs to pay for additional discovery in a pre-class certification dispute.

Ediscovery – Cost-shifting Trends for Big Data

Although Vaughn’s holding applied specifically to pre-class certification discovery, the opinion follows a growing trend of courts increasingly turning to cost-shifting to more equitably distribute the cost of Electronically Stored InformationBig data cost-shifting: Cisco, the dawn of the zettabyte era (ESI) production between parties. Further, the notions advanced by Vaughn will likely continue to find footing as data volumes proliferate. Since the advent of the microprocessor in 1971, the volume of data has exploded. In 2012, the amount of global data reached approximately 2.8 zettabytes (ZB), and by 2020, the digital universe is expected to reach 40ZB—enough information to fill over a half trillion 32GB tablet computers. Naturally, as data volumes increase, so do the amounts of ESI subject to litigation, as well as the costs associated with production.

Although the likelihood of cost shifting in big data ediscovery is on the rise with big data, legal expertise and advocacy are still necessary. Not all arguments for cost-shifting are a slam dunk, and the presumption that the producing party pays remains. Parties requesting cost-shifting must bolster their arguments with sufficient facts and figures to prove that the traditional presumption would prove burdensome or inequitable. Otherwise, you might find yourself dejectedly (and perhaps mistakenly) clinging to the belief that life simply isn’t fair.

View the new Kroll Ontrack cost-shifting infographic.

Top 5 Ediscovery Case Summaries – March 2013

Read the very latest ediscovery case law summaries

Below are the top 5 ediscovery case summaries for March, 2013.

Court Sanctions Party for Failure to Preserve Text Messages
Christou v. Beatport, LLC, 2013 WL 248058 (D. Colo. Jan. 23, 2013)

Court Sanctions Party for “Misleading” Certification
Branhaven, LLC v. Beeftek, Inc., et al., 2013 WL 388429 (D. Md. Jan. 4, 2013)

Court Awards over $12,000,000 in Attorneys’ Fees, Predictive Coding Costs
Gabriel Tech. Corp. v. Qualcomm Inc., 2013 WL 410103 (S.D.Cal. Feb. 1, 2013)

Court Pries into the Definition of “Content” under the Stored Communications Act
Optiver Aus. Pty. Ltd. & Anor. v. Tibra Trading Pty. Ltd. & Ors., 2013 WL 256771 (N.D. Cal. Jan 23, 2013)

Court Scolds Counsel for Taking a “Backseat” Approach to Ediscovery
Peerless Indus., Inc. v. Crimson AV, LLC, 2013 WL 85378 (N.D. Ill. Jan. 8, 2013).

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Top 5 Ediscovery Case Summaries – February, 2013

Read the very latest ediscovery case law summaries

Below are the top 5 ediscovery case summaries for February, 2013.

Court Elaborates on the Standard for Bad Faith Spoliation in Patent Infringement Case
Micron Tech., Inc. v. Rambus, Inc., No. 00-792-SLR (D. Del. Jan. 2, 2013).

Defendant Insurance Company Cannot Investigate Nonpublic Sections of Plaintiffs’ Social Networking Accounts
Keller v. National Farmers Union Property & Cas. Co., 2013 WL 27731 (D. Mont. January 2, 2013).

Court Imputes the Culpable Mind of Defendant’s General Counsel to Defendant Corporation
Day v. LSI Corp., 2012 WL 6674434 (D. Ariz. Dec. 20, 2012).

Federal Court Rules for Further Briefings on Reasonableness of Fee Request under State Law
E.I. DuPont de Nemours and Co. v. Kolon Industries, Inc., 2012 WL 6540072 (E.D. Va. Dec. 13, 2012).

Cell Phone is Not a “Facility” Protected by the Stored Communications Act
Garcia v. City of Laredo, 2012 U.S. App. LEXIS 25370 (5th Cir. Tex. Dec. 12, 2012).

To read more ediscovery case summaries, visit our resource library.