Contract Attorneys – The Latest Addition to the Endangered Species List

Last week I read an article on law.com titled “Does Predictive Coding Spell Doom for Entry-Level Associates?”  The article was prompted in part by the attention predictive coding is currently receiving as the de jure eDiscovery topic and the starring role it has played in the increasingly soap opera like Da Silva Moore case.  The article concluded that entry-level associates were still necessary and vital assets, even with the rise of predictive coding. 

I agree with the article’s conclusion, and am happy for the associates, but what about their less well placed colleagues, contract attorneys?   The threat for survival that contract attorneys face comes not just from predictive coding but from law schools that spill new graduates like a broken faucet, as well as from employers that take advantage of the situation by offering unscrupulously low wages knowing that for every position they have, there are several applicants willing to fill it at almost any rate or cost.  So, is there still a place for contract attorneys?  Will predictive coding and the deluge of law school graduates wipe out their positions, or depress their value to the point where the attorneys would make more money working at McDonalds?  I hope the answer is no, and the answer should be no if the legal community takes a moment to realize they need to treat contract attorneys  like the nonfungible assets they can be, rather than as pariahs who are undeserving of earning even $20 an hour. 

Despite their persona non grata reputation, a quality contract attorney is worth their weight in gold, and the legal industry should do everything it can to ensure they do not go the way of the dodo, whether because of technology, wages, or anything else.  Contract attorneys’ hands-on expertise and knowledge of review platforms and software can add great efficiency and effectiveness to a project.  Their in-depth familiarity with the documents and details of a case can be illuminating, and their understanding of the eDiscovery process can be a difference maker.  The truly good contract attorneys are knowledgeable experts that can be leveraged to your advantage and provide valuable input and consultation to your case and how you prepare for it.  More than hired mercenaries whose goal it is to plow through data as quickly as possible, contract attorneys can be your eyes and ears in the data.

At the end of the day, you get what you pay for, and nowhere is that more true than with contract attorneys.  You may be able to fill positions offering wages as low as $15 an hour, but that will not get you much more than a warm body.  With such a low rate of pay, a contract attorney will have every incentive to look everywhere and anywhere for a different job.  They will lack quality, consistency, motivation, and loyalty, resulting in a poor quality review, even if cheap.

Alternatively, as with most positions in life, the more faith and responsibility you show contract attorneys (along with paying them a decent wage for someone with a law degree) the more you obtain from them and the more value they will add to your case.  I urge you to look beyond the mere number efficiencies technology such as predictive coding can provide, to look beyond the hourly rate you are paying, and to focus instead on the intangible values added to your overall case.  That is where you find the true value and worth of your contract attorneys, and where you will find, if utilized properly, the good ones are invaluable and indispensible.  Do not get me wrong, I am not suggesting that you should forgo the use technology or that you should be offering your contract attorneys partner level compensation.  I am simply saying that technology should be used to supplement and enhance your contract attorneys’ value and capabilities, not replace them. 

Despite advances in technology, the human element of eDiscovery remains more vital and important than ever.  A key component of this human element is the contract attorney.  Even with the advance of predictive coding and like technologies, skilled contract attorneys should continue to be valuable commodities undeserving of a place on any endangered list.

Da Silva Moore, Global Aerospace, and Kleen Products – Hyped Triumvirate, But Dispositive Opinion Is Yet To Come

Three recent cases have taken the spotlight in the eDiscovery world, lauded as groundbreaking for their approval of predictive coding. This blog is no exception, having contributed to the commotion, particularly that surrounding Monique da Silva Moore, et. al. v. Publicis Group SA, et al.

In Da Silva Moore, the parties initially agreed to use predictive coding (although they never agreed to all of the details) and Magistrate Judge Peck allowed its use.  Plaintiffs have since attacked Judge Peck and most recently formally sought his recusal from the matter.  That request is currently pending.

Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles, is the most recent case to address predictive coding, and it goes a step further than Da Silva Moore.  In Global Aerospace, the defendants wanted to use predictive coding themselves, but plaintiffs objected.  Virginia County Circuit Judge James H. Chamblin, ordered that Defendants could use predictive coding to review documents.  Like Da Silva Moore, the court did not impose the use of predictive coding, rather, the court allowed a party to use it upon request.

Kleen Prods., LLC v. Packaging Corp. of Am. goes the furthest, and is perhaps the most interesting of the three predictive coding cases because it is different than Da Silva Moore and Global Aerospace in one very important way: the plaintiffs in Kleen are asking the court to force the defendants to use predictive coding when defendants review their own material.  The court has yet to rule on the issue.

These three cases are in the spotlight because the use of predictive coding is seemingly at issue, and yet, in some ways, predictive coding is only marginally at issue.  Yes, in one sense the courts are ruling upon the technology itself and whether it is viable; if a court allows it to be used, it is implicit recognition that the technology works, at least enough to try it out and see how it goes.  However, these cases are really about who gets to choose the technology and method utilized.  These cases and disputes could exist with fact patterns where the parties are arguing over key word searches or linear review and the analysis would be much the same as they are now with predictive coding.  Can the parties pick and agree to a review method and technology?  In Da Silva Moore, Judge Peck said yes.   Can one party pick how they perform their review?  The Virginia court in Global Aerospace said yes.   Can one party force another party to use certain technologies and methods to perform their review?  The Kleen court has yet to rule on the issue. 

These questions are not new and novel and so far, the answers have not been so either.  Yes, they have allowed the parties to use predictive coding, but like with other technologies, the courts have taken a wait and see approach.  If the predictive coding technologies and/or processes used are unsuccessful in meeting obligations and needs, the courts appear more than willing to make adjustments, and perhaps embrace different technologies at that time; they are willing to give predictive coding a shot, but they are not betting the house on it either.

It is understandable why proponents of predictive coding are happy and view these cases as victories.  After all, these are the first opinions approving the technologies use, even if in a somewhat implicit manner.  However, the industry and the legal community must wait before drawing our final conclusions.  Only after a party has successfully used predictive coding in a case and survived a challenge of the results/end product (not just a challenge of its use) and it is captured in written opinion or order, will a true victory be won by predictive coding proponents.  Until then, predictive coding is still the equivalent of a highly rated draft pick; there is a lot of potential, and most people think it will succeed, including myself, but it still needs to prove itself in the trenches.  The predictive coding industry is bullish about its potential for success, and it may only be a matter of time until they are proved right, but only time will tell.

Da Silva Moore Update: Judge Peck Responds to Plaintiffs' "Scorched Earth" Campaign

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

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.