On July 19, 2018, the Chief Administrative Judge of the Courts issued an administrative order adopting a new rule for the New York Commercial Division supporting the use of technology-assisted document review. Based on a recommendation and proposal by the Subcommittee on Procedural Rules to Promote Efficient Case Resolution, Commercial Division Rule 11-e has been amended to state: The parties are encouraged to use the most efficient means to review documents, including electronically stored information (“ESI”), that is consistent with the parties’ disclosure obligations under Article 31 of the CPLR and proportional to the needs of the case. Such means may include technology-assisted review, including predictive coding, in appropriate cases. The parties are encouraged to confer, at the outset of discovery and as needed throughout the discovery period, about technology-assisted review mechanisms they intend to use in document review and production. The Subcommittee noted that document review “consumes an average of 73% of the total cost of document production in cases involving electronic discovery.” With that in mind, the Court adopted a rule meant to streamline and make electronic discovery more efficient in large, complex and e-discovery-intensive cases. The use of technology-assisted review is still optional. It should be considered on a case-by-case basis and the parties are encouraged to confer about its potential use....
E-Discovery Year-in-Review 2014: Panel at Gibbons Eighth Annual E-Discovery Conference Discusses Recent Developments, Issues, and Trends
On December 5, 2014, Gibbons hosted its Eighth Annual E-Discovery Conference. The day’s first session discussed the year’s significant developments and featured panelists Michael Arkfeld, Principal at Arkfeld & Associates, and two Gibbons E-Discovery Task Force members; Director Jennifer Hradil and Associate Michael Landis.
On May 6, 2013, the U.S. Department of Justice’s (“DOJ”) Antitrust Division approved Constellation Brands Inc.’s (“Constellation”) and Crown Imports LLC’s (“Crown”) request to use predictive coding to determine which documents were most relevant and responsive to the DOJ’s requests. Constellation is a potential buyer of assets from the huge AB InBev-Grupo Modelo merger, and Crown is a joint venture between Grupo Modelo and Constellation. Reportedly, Constellation and Crown identified in excess of one million documents that would require manual review before being handed over to the Justice Department for scrutiny. After several seed sets were run using the automated data review software and compared manually, DOJ was satisfied that the predictive coding software would identify the most relevant documents and approved its use. As reported by the Wall Street Journal, the predictive coding software used by the parties was developed by kCura Corporation, a software vendor for many entities including DOJ.
Update of Proposed Rule Changes: A Universal Federal Sanctions Standard for the Failure to Preserve ESI Could be a Reality
The United States Courts’ Advisory Committee on Civil Rules (“the Committee”) has proposed various amendments to the Federal Rules of Civil Procedure that, if adopted, will profoundly affect the range and scope of sanctions a court may impose for failures to preserve electronically stored information (“ESI”). F.R.C.P. 37(e), which currently addresses sanctions in those instances, is one of several rules slated for amendment.
The International Organization for Standardization (“ISO”) is forming a new e-discovery committee tasked with the development of standards for e-discovery processes and procedures. The international standard “would provide guidance on measures, spanning from initial creation of [electronically stored information] through its final disposition which an organization can undertake to mitigate risk and expense should electronic discovery become an issue” according to a draft committee charter.
As we previously discussed, the new inter partes review (IPR) procedures went into effect September 16, 2012, along with several other significant changes. The IPR procedure replaces the previous inter partes reexamination and applies to any patent issued before, during, or after September 16, 2012. This removes one of the hurdles of the previous inter partes reexamination which applied only to applications filed after November 29, 1999. The PTO will only accept a valid IPR petition nine months after a patent issues. As in inter partes reexamination, the IPR permits the petitioner to challenge claims as being anticipated or obvious in view of published prior art references. Also, like the previous inter partes reexamination, IPR carries with it an estoppel effect barring the IPR petitioner from asserting the invalidity of any challenged claim on the same arguments and references in any district court action.
If you’ve been following this blog, then you know that the Monique da Silva Moore, et al. v. Publicis Groupe SA and MSL Group case, in which Magistrate Judge Peck authored the first opinion approving the use of predictive coding, is very contentious. You can read our latest entries discussing this controversial case from March 2 and May 16. It appears there is no sign the tension will abate anytime soon.
Predictive Coding Upheld by District Court: Judge Carter Endorses Judge Peck’s Approval of Computer-Assisted ESI Review
On March 2, 2012, we reported on Magistrate Judge Andrew Peck’s February 24, 2012 decision in Monique Da Silva Moore, et al., v. Publicis Groupe & MSL Group, Civ. No. 11-1279 (ALC)(AJP) (S.D.N.Y. Feb. 24, 2012), wherein Judge Peck issued the first judicial opinion approving the use of predictive coding “in appropriate cases.” On April 25, 2012, District Judge Andrew L. Carter, Jr. rejected plaintiffs’ bid to overturn that decision, and cleared the way for the use of computer-assisted ESI review in this case and others.
Late last year, Magistrate Judge Andrew Peck of the U.S. District Court for the Southern District of New York, one of the most prominent judicial thought leaders in e-discovery, wrote an article entitled Search, Forward in which he opined that computer-assisted ESI review “should be used where it will help ‘secure the just, speedy and inexpensive’ (Fed. R. Civ. P. 1) determination of cases”, but he forecast that lawyers awaiting a judicial opinion endorsing predictive coding might have “a long wait.” As it turns out, the wait wasn’t very long at all; on Friday, February 24, 2012, less than 6 months after the publication of his article, Judge Peck himself issued the first judicial opinion approving the use of predictive coding “in appropriate cases.”
The American Bar Association recently published Formal Opinion 11-460 to provide guidance to attorneys regarding their ethical duty upon discovering emails between a third party and the third party’s attorney. The Opinion interprets Model Rule 4.4(b) literally, concluding that neither that rule nor any other requires an attorney to notify opposing counsel of receipt of potentially privileged communications. The Opinion is of particular note because it directly contradicts the New Jersey Supreme Court’s opinion in Stengart v. Loving Care Agency. Inc. 201 N.J. 300 (2010).