Knotty Issues of eDiscovery
Here is a simple question with a complex answer: Should search terms be used before or after predictive coding? That question was the subject of dueling motions in In re Allergan Biocell Textured Breast Implant Prods. Liab. Litig. (D.N.J. Oct. 25, 2022, No. MDL No. 2921) 2022 U.S.Dist.LEXIS 200790, at[…]
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Court orders are not known for giving out gold stars for handling electronic discovery. If there is a court order, it is usually because of a dispute. There is a big exception to this maxim: Electronic Discovery Case Management Orders. The parties in MSR Tr. v. Nationstar Mortg., filed a[…]
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There are lawyers who do not trust, do not understand, or do not want to learn how to use Technology Assisted Review (lovingly known as TAR), in discovery. TAR is a sticky definition, because TAR can be “predictive coding,” or “machine learning,” or “email threading,” or “clustering,” or any other[…]
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Unpublished opinions cannot be cited in any motion, but can be very illuminating on how state courts are handling ediscovery issues. In a case where plaintiffs sued a retailer for alleged violations of requesting and recording personal identification information during sales, the defendants were able to recover predictive coding costs[…]
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“eDiscovery Day” is December 1 in recognition of the effective dates for the 2006 and 2015 Amendments to the Federal Rules of Civil Procedure. Over the last decade, eDiscovery has dramatically impacted how attorneys conduct document review. In my guest post for Everlaw on When Has a Producing Party Completed[…]
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The use of predictive coding to help identify responsive discovery is a hybrid of science and the practice of law. Attorneys have to understand the merits of the case, the type of electronically stored information that can support the claims and defenses, and how to use the technology to find[…]
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Discovery productions are a mix of art and science. I am of the mindset that parties should bring a motion to compel when a production is inadequate, not over what search terms to use. This is one of those cases where the parties fought over how to search for ESI.[…]
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United States Magistrate Judge Sallie Kim refused to order Defendants to use predictive coding to identify the location of responsive ESI. In re Viagra (Sildenafil Citrate) Prods. Liab. Litig., No. 16-md-02691-RS (SK), 2016 U.S. Dist. LEXIS 144925, at *51-53 (N.D. Cal. Oct. 14, 2016). This was the right decision based[…]
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I remember visiting the La Brea Tar Pits as a child. Opinions that focus on whether or not parties should use Technology Assist Review always makes me think of mastodons drowning in tar. Asking a court for permission to use predictive coding, or trying to force a party to use[…]
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As 2014 draws to a close, it is time to reflect on the cases from this year in eDiscovery. One of the biggest trends I took away from caselaw in 2014, is that more Judges have a greater understanding of eDiscovery, resulting in practical opinions. Here are the practice areas[…]
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