Predictive Coding in Unpredictable Order from US Chancery Judge

Over the last year, there has been some important but still fairly cautious movement in the US courts on two fronts: (1) increased willingness to accept computer-assisted review (“CAR”) as a valid and defensible means of reducing the cost of discovery, and (2) greater encouragement of cooperation between parties during the discovery phase. The most salient decisions have been da Silva Moore (finding that CAR technology can be an appropriate technology in large and costly cases) and Kleen Products (strongly encouraging the parties to cooperate).

Now we have a Vice Chancellor of the Delaware Chancery Court going far beyond his colleagues and actually ordering the parties to adopt CAR and even to use the same vendor to host their data.

Many of us who have been active in the eDiscovery field for some time have been arguing for the adoption of advanced technologies and for greater cooperation between parties in the choice and deployment of particular technologies, but this order will likely take even the most ardent advocates by surprise.

There is already significant chatter about this ruling, much of it going so far as to suggest that Vice Chancellor Laster went beyond his proper role when he forced a particular approach to discovery on the litigants. Fair enough: Laster is essentially declaring here that no reasonable party can refuse both to adopt CAR and to agree to have its data hosted by the same vendor that is hosting the opposing side’s data. Still, it is more than likely that, once feathers have settled back into place, this ruling will be seen as part of a trend in which judges will move litigants – however reluctant they may be – in the direction of sensible, defensible, responsible and cost-effective means of streamlining the eDiscovery process. There is clearly a role for CAR technology in appropriate cases – particularly in early, first-pass binary responsiveness reviews involving vast amounts of data. There are also significant logistical and cost benefits to parties’ agreeing to share technical resources and developing standardized protocols for processing, search, analysis, review and production. Choosing an appropriate vendor to host all case data (with appropriate permissions, partitions and safeguards) is an avenue that many litigants will want to explore.

Clearly there is much here to debate. Watch for more discussion of this important ruling.

This case: EORHB, Inc., et al v. HOA Holdings, LLC, C.A. No. 7409-VCL (Del. Ch. Oct. 15, 2012)

Da Silva Moore v. MLS. (Case 1:11-cv-01279-ALC-AJP) (S.D.N.Y.)

Kleen Products, LLC, et al. v. Packaging Corp. of Amer., et al., Case: 1:10-cv-05711, Document #412 (ND, Ill., Sept. 28, 2012)

HT: Ralph Losey.

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