In the latest twist in the Da Silva Moore predictive coding case, Magistrate Judge Andrew J. Peck has responded to Plaintiffs' personal attack on him.
In a two page Order specifically addressing Plaintiffs' March 28, 2012 letter requesting Judge Peck's recusal, Judge Peck projects an aura of control, restraint, and is matter of fact in his statements. Judge Peck states:
"The Court notes that my favorable view of computer assisted review technology in general was well known to plaintiffs before I made any ruling in this case, and I have never endorsed Recommind's methodology or technology, nor received any reimbursement from Recommind for appearing at any conference that (apparently) they and other vendors sponsored, such as Legal Tech. I have had no discussions with Mr. Losey about this case, nor was I aware that he is working on the case. It appears that after plaintiffs' counsel and vendor represented to me that they agreed to the use of predictive coding, plaintiffs now claim that my public statements approving generally of computer assisted review make me biased. If plaintiffs were to prevail, it would serve to discourage judges (and for that matter attorneys) from speaking on educational panels about ediscovery (or any other subject for that matter). The Court suspects this will fall on deaf ears, but I strongly suggest that plaintiffs rethink their 'scorched earth' approach to this litigation."
Judge Peck’s response is in sharp contrast to Plaintiffs’ emotional and personal attach levied against the Judge. I applaud Judge Peck for taking the highroad and sticking to the facts, while still making his points. I am sure there will be more to come from this case and the eDiscovery News blog will keep you posted with any updates we become aware of.
To read the eDiscovery News blog’s original post about Plaintiff’s attack on Judge Peck please use the following link: http://endangeredanimals8.blogspot.com/2012/03/update-plaintiffs-attack-judge-pecks-da.html
Monica Bay of Law Technology News wrote an interesting article summarizing some of the commentary of Plaintiffs’ attack. That article can be reached via the following link: http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202547231187&Da_Silva_Moore_Plaintiffs_Reply_Brief_Generates_Quite_a_Bit_of_Fury
Showing posts with label new york. Show all posts
Showing posts with label new york. Show all posts
Tuesday, April 3, 2012
Wednesday, March 21, 2012
Update – Plaintiffs Attack Judge Peck’s Da Silva Moore Predictive Coding Order Again
Perhaps no discovery order has been so widely covered (including by this blog) or deeply analyzed as Judge Peck’s order endorsing predictive coding in the Da Silva Moore case. In the latest turn, plaintiffs have filed a Reply in support of the objection to Judge Peck’s predictive coding ruling.
From the outset, there was a noticeable undertone of animosity towards Judge Peck running throughout the Reply. Plaintiffs took the opportunity to play up the connection between Judge Peck and defense counsel Ralph Losey (who is also regarded as a thought leader in the eDiscovery industry and is the author of a widely disseminated blog among other things), and to a lesser extent Recommind, the software vendor whose computer assisted review platform will potentially be used in this matter. Plaintiffs dedicate the first two pages (out of 14 total, and only 11 of which address the predictive coding dispute) to the recent professional relationship between Judge Peck and Mr. Losey, which has focused on the endorsement and discussion of predictive coding at various industry events around the country.
Asking “that the court reject MSL’s use of predictive coding and require the parties come up with a new ESI Protocol,” plaintiffs warn that “Judge Peck sets a dangerous precedent that is likely to deter future litigants from even considering predictive coding, lest they be bound by a protocol that contains no measure of reliability.” Obviously, counsel is trying to persuade the court here (which I can certainly appreciate), but I strongly disagree with this point. As I recently discussed in a blog titled: You Cannot Unring a Bell – Judge Peck’s Da Silva Moore Opinion Will Continue to Be Influential Despite Objection (http://endangeredanimals8.blogspot.com/2012/03/you-cannot-unring-bell-judge-pecks-da.html), regardless of the outcome of this particular objection, predictive coding will continue to be a hot topic, and litigants will use it to the extent it makes fiscal sense and produces reasonable results.
Interestingly, plaintiffs cite Kleen Prods., LLC v. Packaging Corp. of Am., No. 10 C 5711 (N.D. Ill) in support of their arguments. Kleen is the case where plaintiffs have asked Magistrate Judge Nan R. Nolan to order defendants to use predictive coding. Plaintiffs in the Da Silva Moore matter hold Judge Nolan’s decision to require full briefing, expert reports, and evidentiary hearing on the use of predictive coding in high regard when contrasted with Judge Peck’s relatively quick process and decision. Arguing “in his rush to be the first in line to approve predictive coding, Judge Peck did not elicit expert testimony or give the parties an opportunity to question or cross-examine the experts.”
The outcome of the Da Silva Moore predictive coding dispute is now squarely in the hands of Judge Andrew Carter, and this blog will do its best to provide further updates as they arise.
As an aside, plaintiff also made the same argument, that this blog raised in its inaugural post: Peck and Choose (http://endangeredanimals8.blogspot.com/2012/03/peck-and-choose.html), regarding Judge Peck’s deference to French Privacy Law, stating that “Judge Peck failed to engage in the required comity analysis, under which the vast majority of U.S. precedents have found that French law does not preempt discovery.” It will be interesting to see what the outcome of this issue is as the matter proceeds.
From the outset, there was a noticeable undertone of animosity towards Judge Peck running throughout the Reply. Plaintiffs took the opportunity to play up the connection between Judge Peck and defense counsel Ralph Losey (who is also regarded as a thought leader in the eDiscovery industry and is the author of a widely disseminated blog among other things), and to a lesser extent Recommind, the software vendor whose computer assisted review platform will potentially be used in this matter. Plaintiffs dedicate the first two pages (out of 14 total, and only 11 of which address the predictive coding dispute) to the recent professional relationship between Judge Peck and Mr. Losey, which has focused on the endorsement and discussion of predictive coding at various industry events around the country.
Asking “that the court reject MSL’s use of predictive coding and require the parties come up with a new ESI Protocol,” plaintiffs warn that “Judge Peck sets a dangerous precedent that is likely to deter future litigants from even considering predictive coding, lest they be bound by a protocol that contains no measure of reliability.” Obviously, counsel is trying to persuade the court here (which I can certainly appreciate), but I strongly disagree with this point. As I recently discussed in a blog titled: You Cannot Unring a Bell – Judge Peck’s Da Silva Moore Opinion Will Continue to Be Influential Despite Objection (http://endangeredanimals8.blogspot.com/2012/03/you-cannot-unring-bell-judge-pecks-da.html), regardless of the outcome of this particular objection, predictive coding will continue to be a hot topic, and litigants will use it to the extent it makes fiscal sense and produces reasonable results.
Interestingly, plaintiffs cite Kleen Prods., LLC v. Packaging Corp. of Am., No. 10 C 5711 (N.D. Ill) in support of their arguments. Kleen is the case where plaintiffs have asked Magistrate Judge Nan R. Nolan to order defendants to use predictive coding. Plaintiffs in the Da Silva Moore matter hold Judge Nolan’s decision to require full briefing, expert reports, and evidentiary hearing on the use of predictive coding in high regard when contrasted with Judge Peck’s relatively quick process and decision. Arguing “in his rush to be the first in line to approve predictive coding, Judge Peck did not elicit expert testimony or give the parties an opportunity to question or cross-examine the experts.”
The outcome of the Da Silva Moore predictive coding dispute is now squarely in the hands of Judge Andrew Carter, and this blog will do its best to provide further updates as they arise.
As an aside, plaintiff also made the same argument, that this blog raised in its inaugural post: Peck and Choose (http://endangeredanimals8.blogspot.com/2012/03/peck-and-choose.html), regarding Judge Peck’s deference to French Privacy Law, stating that “Judge Peck failed to engage in the required comity analysis, under which the vast majority of U.S. precedents have found that French law does not preempt discovery.” It will be interesting to see what the outcome of this issue is as the matter proceeds.
Friday, March 16, 2012
You Cannot Unring a Bell - Judge Peck's Da Silva Moore Opinion Will Continue to Be Influential Despite Objection
News recently broke noting that Magistrate Judge Andrew Peck's recent opinion addressing predictive coding is in jeopardy of becoming obsolete less than a month after causing shockwaves within the eDiscovery community.
It seems the plaintiffs in the Da Silva Moore matter took exception to the procedural and temporal irregularities surrounding the seminal opinion; Judge Peck issued the opinion after plaintiffs filed their objections, thereby depriving them of the opportunity to object to the opinion itself. Consequently, plaintiffs objected and sought the opportunity to respond to the opinion itself to which Judge Andrew Carter obliged.
While this new twist may be significant in some respects, it does not mean Judge Peck's opinion is now meaningless, and it most certainly does not signal the end of the predictive coding movement and trend; if anything, this will only serve to draw more attention to predictive coding, the de jour subject in eDiscovery at the moment. Indeed, plaintiffs’ objections focused more on procedural and process issues, rather than the efficacy or validity of predictive coding in general or as a whole.
Judge Peck is clearly an advocate of predictive coding, and in issuing his seminal opinion endorsing, or at least agreeing to the use of, predictive coding, he was perhaps a little eager to make his point. However, that fact does not greatly diminish the power of what he said, and does not close the predictive coding door that Judge Peck opened (the opinion made a large splash for a reason). Despite this minor setback, the push for predictive coding will continue to move forward and the industry will continue to look to the Peck Da Silva Moore decision as a watershed moment regardless of the outcome of this new twist - you cannot unring the bell.
It seems the plaintiffs in the Da Silva Moore matter took exception to the procedural and temporal irregularities surrounding the seminal opinion; Judge Peck issued the opinion after plaintiffs filed their objections, thereby depriving them of the opportunity to object to the opinion itself. Consequently, plaintiffs objected and sought the opportunity to respond to the opinion itself to which Judge Andrew Carter obliged.
While this new twist may be significant in some respects, it does not mean Judge Peck's opinion is now meaningless, and it most certainly does not signal the end of the predictive coding movement and trend; if anything, this will only serve to draw more attention to predictive coding, the de jour subject in eDiscovery at the moment. Indeed, plaintiffs’ objections focused more on procedural and process issues, rather than the efficacy or validity of predictive coding in general or as a whole.
Judge Peck is clearly an advocate of predictive coding, and in issuing his seminal opinion endorsing, or at least agreeing to the use of, predictive coding, he was perhaps a little eager to make his point. However, that fact does not greatly diminish the power of what he said, and does not close the predictive coding door that Judge Peck opened (the opinion made a large splash for a reason). Despite this minor setback, the push for predictive coding will continue to move forward and the industry will continue to look to the Peck Da Silva Moore decision as a watershed moment regardless of the outcome of this new twist - you cannot unring the bell.
Wednesday, March 7, 2012
Not So eDiscovery e-Discovery Rules
Good Morning All,
As of late, I have been taking a keen interest in the development and nascent proliferation of eDiscovery "pilot programs" and other similar efforts, usually by courts, to standardize eDiscovery. So, when I saw an article put out by Thomson Reuters entitled "New York Implements new mandatory e-discovery rules" I was quite intrigued. However, upon reading the article I was quite disappointed and even shocked.
It turns out the article is all about New York state courts mandating that documents and pleadings in certain cases be filed with the court electronically. While I certainly applaud the courts of New York for their effort to go paperless, and Thomson Reuters for covering the topic, this is not an article about eDiscovery, regardless of what the title says.
Thomson Reuters' confusion did drive home a point for me. In this age of eDiscovery certifications, judges endorsing computer-assisted coding, and social media, a large part of the legal community, and an even greater portion of the community at large, have no idea what eDiscovery is, let alone utilize it.
While Judge Peck and others like him press forward at the forefront of the field, many practitioners have never used an electronic document review platform, still insist on reviewing documents in hard copy, or cling to any number of other antiquated discovery methods. The fact that Thomson Reuters, a respected news agency, could so easily misuse the term simply emphasizes this point; while the field of eDiscovery is making great strides and pushing forward, there are still many who do not know the basics and need to be educated. If we can somehow educate the majority of legal practitioners about eDiscovery, that, in my mind, may be a far greater and broader reaching achievement than computer-assisted coding currently is.
How will this be achieved? My answer is through those of us in the eDiscovery industry working to educate and initiate others. It will take time, but I am confident it can be done. So, I encourage all of you to take on that task, and the next time one of your colleagues asks for all the documents to be printed and put in a bankers box, take a moment to let them in on the secret that is eDiscovery.
If you would like to read the entire Thomson Reuters article please use this link: http://newsandinsight.thomsonreuters.com/New_York/News/2012/02_-_February/New_York_implements_new_mandatory_e-discovery_rules/
As of late, I have been taking a keen interest in the development and nascent proliferation of eDiscovery "pilot programs" and other similar efforts, usually by courts, to standardize eDiscovery. So, when I saw an article put out by Thomson Reuters entitled "New York Implements new mandatory e-discovery rules" I was quite intrigued. However, upon reading the article I was quite disappointed and even shocked.
It turns out the article is all about New York state courts mandating that documents and pleadings in certain cases be filed with the court electronically. While I certainly applaud the courts of New York for their effort to go paperless, and Thomson Reuters for covering the topic, this is not an article about eDiscovery, regardless of what the title says.
Thomson Reuters' confusion did drive home a point for me. In this age of eDiscovery certifications, judges endorsing computer-assisted coding, and social media, a large part of the legal community, and an even greater portion of the community at large, have no idea what eDiscovery is, let alone utilize it.
While Judge Peck and others like him press forward at the forefront of the field, many practitioners have never used an electronic document review platform, still insist on reviewing documents in hard copy, or cling to any number of other antiquated discovery methods. The fact that Thomson Reuters, a respected news agency, could so easily misuse the term simply emphasizes this point; while the field of eDiscovery is making great strides and pushing forward, there are still many who do not know the basics and need to be educated. If we can somehow educate the majority of legal practitioners about eDiscovery, that, in my mind, may be a far greater and broader reaching achievement than computer-assisted coding currently is.
How will this be achieved? My answer is through those of us in the eDiscovery industry working to educate and initiate others. It will take time, but I am confident it can be done. So, I encourage all of you to take on that task, and the next time one of your colleagues asks for all the documents to be printed and put in a bankers box, take a moment to let them in on the secret that is eDiscovery.
If you would like to read the entire Thomson Reuters article please use this link: http://newsandinsight.thomsonreuters.com/New_York/News/2012/02_-_February/New_York_implements_new_mandatory_e-discovery_rules/
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