The 7th Circuit eDiscovery Pilot Program’s Mock Argument is the first of its kind and is slated for June 14, 2012. It is not surprising that the Seventh Circuit’s eDiscovery Pilot Program would be the first to host an event like this on predictive coding, as the program has been a progressive model across the country for eDiscovery protocols since 2009. The predictive coding event is open to the public (registration required) and showcases the expertise of leading litigators, technologists and experts from all over the United States. Speakers include: Jason R. Baron, Director of Litigation at the National Archives and Records Administration; Maura R. Grossman, Counsel at Wachtell, Lipton, Rosen & Katz; Dr. David Lewis, Technology Expert and co-founder of the TREC Legal Track; Ralph Losey, Partner at Jackson Lewis; Matt Nelson, eDiscovery Counsel at Symantec; Lisa Rosen, President of Rosen Technology Resources; Jeff Sharer, Partner at Sidley Austin; and Tomas Thompson, Senior Associate at DLA Piper.
The eDiscovery 2.0 blog has extensively covered the three recent predictive coding cases currently being litigated, and while real court cases are paramount to the direction of predictive coding, the 7th Circuit program will proactively address a scenario that has not yet been considered by a court. In Da Silva Moore, the parties agreed to the use of predictive coding, but couldn’t subsequently agree on the protocol. In Kleen, plaintiffs want defendants to redo their review process using predictive coding even though the production is 99% complete. And, in Global Aerospace the defendant proactively petitioned to use predictive coding over plaintiff’s objections. By contrast, in the 7th Circuit’s hypothetical, the mock argument predicts another likely predictive coding scenario; the instance where a defendant has a deployed in-house solution in place and argues against the use of predictive coding before discovery has begun.
Traditionally, courts have been reticent to bless or admonish technology, but rather rule on the reasonableness of an organization’s process and depend on expert testimony for issues beyond that scope. It is expected that predictive coding will follow suit; however, because so little is understood about how the technology works, interest has been generated in a way the legal technology industry has not seen before, as evidenced by this tactical program.
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The hypothetical dispute is a complex litigation matter pending in a U.S. District Court involving a large public corporation that has been sued by a smaller high-tech competitor for alleged anticompetitive conduct, unfair competition and various business torts. The plaintiff has filed discovery requests that include documents and communications maintained by the defendant corporation’s vast international sales force. To expedite discovery and level the playing field in terms of resources and costs, the Plaintiff has requested the use of predictive coding to identify and produce responsive documents. The defendant, wary of the latest (and untested) eDiscovery technology trends, argues that the organization already has a comprehensive eDiscovery program in place. The defendant will further argue that the technological investment and defensible processes in-house are more than sufficient for comprehensive discovery, and in fact, were designed in order to implement a repeatable and defensible discovery program. The methodology of the defendant is estimated to take months and result in the typical massive production set, whereas predictive coding would allegedly make for a shorter discovery period. Because of the burden, the defendant plans to shift some of these costs to the plaintiff.
Ralph Losey’s role will be as the Magistrate Judge, defense counsel will be Martin T. Tully (partner Katten Muchin Rosenman LLP), with Karl Schieneman (of Review Less/ESI Bytes) as the litigation support manager for the corporation and plaintiff’s counsel will be Sean Byrne (eDiscovery solutions director at Axiom) with Herb Roitblat (of OrcaTec) as plaintiff’s eDiscovery consultant.
As the hottest topic in the eDiscovery world, the promises of predictive coding include: increased search accuracy for relevant documents, decreased cost and time spent for manual review, and possibly greater insight into an organization’s corpus of data allowing for more strategic decision making with regard to early case assessment. The practical implications of predictive coding use are still to be determined and programs like this one will flesh out some of those issues before they get to the courts, which is good for practitioners and judges alike. Stay tuned for an analysis of the arguments, as well as a link to the video.