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Idealistic musings about eDiscovery
Via Ralph Losey and his e-Discovery Team blawg comes this surprising opinion out of Delaware Chancery Court: EOHB, Inc., et al v. HOL Holdings, LLC, C.A. No. 7409-VCL (Del. Ch. Oct. 15, 2012). The ruling REQUIRES both parties to this case to use technology-assisted review (i.e., “predictive coding”), even though neither party raised the question; and REQUIRES both to use the same vendor.
From the transcript of Vice Chancellor J. Travis Laster’s ruling in open court:
I would like you all to talk about a single discovery provider that could be used to warehouse both sides’ documents to be your single vendor. Pick one of these wonderful discovery super powers that is able to maintain the integrity of both side’s documents and insure that no one can access the other side’s information. If you cannot agree on a suitable discovery vendor, you can submit names to me and I will pick one for you.
Now, there are activist judges … and then there is Chancellor Laster. But as Ralph observes:
The parties will probably suggest in very polite language that it is none of the court’s business how either side goes about producing their own electronically stored information, much less select a vendor for them. There has been no dispute between the parties to justify this kind of intervention, no allegations of unreasonable search and inadequate production. Unlike the Kleen Products case, where the plaintiff tried to force predictive coding on defendants, there is not even a hint of wrongdoing on either side, much less a suggestion by anone that predictive coding be used. See eg. Kleen Products, LLC, et al. v. Packaging Corp. of Amer., et al., Case: 1:10-cv-05711, Document #412 (ND, Ill., Sept. 28, 2012).
While I definitely believe in the power and cost savings of technology-assisted review, isn’t it a bit beyond the pale for a judge to impose, sua sponte, a requirement of predictive coding where nobody has asked for it and neither party may have the tech-savvy personnel or the budget required to be the guinea pigs for this test case? Plus, if Ralph’s recitation of the case is complete, the chancery judge has missed a key point: Technology-assisted review can’t be used completely in lieu of human reviewers. It must work hand-in-hand with real live attorneys in order for the system to be of any valid use whatsoever.
Please read it for yourself, and respond with your thoughts in the comments.
Yes, I’m still alive, thanks for asking. So, where’ve I been?
Some nine months ago, in December 2011, I wanted to impress the higher-ups at my company with hopes that it would lead to a promotion. I found myself having a casual cocktail with the person in charge of the promotion. The conversation was going fine until I mentioned that (gasp!) I had a blawg.
My benefactor’s response was immediate. “Don’t have a blawg!”
Yes, this contains my own opinions and I’m not going to write anything against the interests of my employer, but at the same time, our marketing folks didn’t get to vet my words here, so the use of a blawg was Very Highly Discouraged. Being a good soldier (and really wanting the dang promotion), I thought it best to comply with this person’s wishes. Hence, the radio silence you’ve (not) been hearing since last December.
Well, in the past nine months, guess how much progress I’ve made with the decision-maker. Yep, none. So, the heck with it; this blawg is back online. I promise to neither shill for my employer’s products or technology, nor say anything that might reflect negatively upon them.
With that pledge, unless I am explicitly told that this blawg threatens my continued employment (which will raise an entirely different issue), we’re back. Whether that’s a good thing or not … hey, you be the judge. This really is here for your use, after all.