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View From the Bench: Judges on E-Discovery at LegalTech Day Two
Law Technology News
Judicial perspectives of e-discovery attorneys' worst and best practices were the subject of a keynote session at LegalTech New York on Wednesday.
Magistrate Judge Andrew Peck, of the Southern District of New York, and Senior Judge Michael Baylson, of the U.S. District Court for the Eastern District of Pennsylvania, led the session and presented their points of view to a packed house starting with their peeves. The panel The Morning Show! Episode 1: The Judicial Perspective Managing Big Data, Proportionality, Data Security, and Privacy also included LexisNexis' Matthew Gillis, vice president and managing director of litigation and professional services.
On the subject of cost-shifting, "When a lawyer says, 'Oh, this is going to cost us a fortune,' I think we take that with a certain grain of salt," Peck said. He told the story of an attorney claiming a possible $1 million discovery bill, then having a consultant say it's really $500,000, followed by an IT worker observing it would only require $25,000 less than the client spent to fight discovery in the first place.
Panel moderator Patrick Oot, of the nonprofit E-Discovery Institute and an attorney at the Securities and Exchange Commission, added that lawyers should be cautious when using technology lingo that they may not understand. Peck agreed cases should have a "Bring Your Geek to Court" day to get to the truth and please judges, he said. "There are probably geeks out there that are looking daggers at me, but we're blinded by the light" of industry buzzwords, he observed.
Some clients may be wary of their attorneys cooperating with the opposition. But, "One of the best ways to avoid excess costs of discovery is a reasonable dialogue with the other side," Peck said. Baylson concurred "'I don't want to cooperate' may be a legitimate strategy, but it's going to cost them money in the long run," he added.
Peck, as he has in the past, also commented on legal technology industry trends. "If 2012 was the year of predictive coding or technology-assisted review, 2013 or '14 seems to be information governance," he noted. "I know there's no money in the corporate budget for this, but it really would be helpful if systems were in place to get rid of the junk. Get rid of the 'what time are we going to lunch' emails that nobody bothers to delete," because that would help reduce the effort and cost of discovery whenever it's needed, he said.
Peck advised that lawyers who are arguing against excessive discovery would be wise to explain how they or their clients have several other cases. Meanwhile, lawyers who are concerned about unintentional production of privileged documents should also seek rule 502(d) orders, he said.
"I'll give you a fairly straight takeaway on 502(d). In my opinion it is malpractice to not seek a 502(d) order from the court before you seek documents," Peck stated. "That doesn't mean you shouldn't carefully review your material for privileged documents before production, but why not have that insurance policy?"
Peck, in concluding, added that he and other federal judges should seek lessons from the Global Aerospace case, in which predictive coding software using data analytics to help attorneys find relevant documents was ordered despite plaintiff's objections. "That was a very, very successful use" of predictive coding, he noted.
Oot, in a brief audience poll, found that only 40 percent of respondents said they understood rule 502(d). Oot will blog about the rule on EDD Update next week, he said. (EDD Update is a Law Technology News blog.)
For all the attention on predictive coding, and the recent wave of alternative approaches, there are mixed impressions of the actual market for such software. "The majority of the time, people are asking about it, instead of asking for it," explained Rob Robinson, vice president of marketing at Orange Legal Technologies.
Similarly, "Folks are trying to use it, but I do say they're 'trying,'" said at Symantec Corp.'s Brian Dye, vice president of product management for the information management group, which includes the Clearwell Systems e-discovery unit.
Both executives shared 2013 road maps for their e-discovery products. Orange is developing its own deduplication technology and its own predictive coding, which is scheduled for shipping in the third quarter of this year. Currently the Salt Lake City, Utah-based company licenses such technology from OrcaTec, president Bret Laughlin said.
As for Symantec, of Mountain View, Calif., the e-discovery plans for this year include a custodian management application due by summer. There's also a plan to make Clearwell software run on what's known as virtualized servers which are software-defined sections of a server, separate from other applications running on the same machine so that different parts of the server could be used for production, review, or other applications without negatively impacting different processes. That plan is generally scheduled for the next 12 to 24 months, Dye said, as are plans to improve Clearwell's review system by changing the analytics and workflows, he said.
Another e-discovery company, iConect Development, of Reston, Va., recently integrated Content Analyst Co.'s analytics software into its own Xera review platform. The analytics piece was technologically separate until now. It will still be priced independently, starting at less than $3,00 for smaller cases of 30 to 60 gigabytes, Chief Business Development Officer Ian Campbell said.
Next, by summer, iConect is opening a programming interface so that customers and resellers can develop home-screen informational tiles, Campbell explained. The tiles could contain case data or external information, and developers could sell or give away their applications through a not-yet-launched website called DiscoveryBridge.org, he said.
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