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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.