May 2012

In This Issue

Da Silva Moore et al v. Publicis Groupe SA and MSL Group: It’s The Process by Chuck Kellner
“Wait! Am I allowed to do this?” The Defensibility of Technology Assisted Review by Michael Bunyi
Counsel’s Perspective: Outlook Is Not A Review Tool, Part II by Cynthia Courtney, Esq.
eDiscovery In the News and On the Web

Da Silva Moore et al v. Publicis Groupe SA and MSL Group: It’s The Process

By Chuck Kellner, SVP, Advisory and Engineering Group

Judge Andrew L. Carter (U.S.D.C., S.D.N.Y) issued an order adopting the rulings of Magistrate Judge Andrew J. Peck in Da Silva Moore et al v. Publicis Groupe SA and MSL Group, Case 1:11-cv-01279-ALC-AJP (Filed 04/26/12).

We see this development as yet one more judicial decision that carefully examines the means by which the reliability of the discovery process can be measured. While predictive coding and other means of technology-assisted review are undoubtedly given a boost in this opinion, the process by which ediscovery may be evaluated for compliance or deficiency is the clear winner here.

Judge Carter discussed the standard of review for non-dispositive matters concerning discovery and the deference that must be given to the magistrate judge on the scene.

“Mindful of this highly deferential standard of review, the Court adopts Judge Peck’s rulings because they are well reasoned and they consider the potential advantages and pitfalls of the predictive coding software.”

Regardless of the disagreements of the parties or of the parties with the magistrate over whether predictive coding had been agreed upon, he said…

Read why the confusion and disagreements over predictive coding is immaterial, according to Judge Carter.

“Wait! Am I allowed to do this?” The Defensibility of Technology Assisted Review

Michael Bunyi, CCE, RCA, Case Manager

In my previous post, I mentioned I would provide some more resources to help answer the question, “Is Technology Assisted Review (TAR) defensible?”.

Determining whether a review method is defensible (or, for that matter, any other action you take in your case), is, and has always been, a function of organization, iteration, sampling and documentation. However, as lawyers and e-discovery experts work to develop strong methods and clear documentation around TAR , there has been a lingering worry that something in that black box is going to blow up and damage your case.

Here are some links to articles and court rulings that should help put you at ease:

•“Overall, the myth that exhaustive manual review is the most effective – and therefore, the most defensible – approach to document review is strongly refuted. Technology-assisted review can (and does) yield more accurate results than exhaustive manual review, with much lower effort.”

-Maura R. Grossman & Gordan V. Cormack

Read 4 more statements form expert sources on the defensibilty of Technology Assisted Review.

Counsel’s Perspective: eDiscvovery 101: Part II – Basics and Beyond

By Cynthia Courtney, Esq.

A few weeks ago, Maureen Holland issued an impassioned report from the trenches about the all-too-common practice of lawyers using their Outlook accounts to review client e-mails. Not surprisingly, there are important reasons why this practice does not comport with Fed. R.Civ.P. 34.

To set the stage, here’s a short quiz.

True or false: A party must produce documents and ESI as they are “maintained in the ordinary course of business.”

Answer: Sort of, but there’s more to it than that.

Federal Rule of Civil Procedure 34 contains a trap for the unwary, which I call the “form vs. manner” distinction—that is, there are really two requirements which sound very similar, but they’re not identical.

Read a brief description of Rul(b)(2)(E) and learn the distinction of form vs. manner.