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Judicial Activism and eDiscovery

The recent case of EORHB, Inc. v. HOA Holdings, LLC is the latest pronouncement from a trial court (see quote below) in the ongoing controversy about the use of predictive coding to search for relevant electronically stored information. The court on its own motion, ruling from the bench and apparently without prior notice to the parties, ordered them to show cause why they should not be required to use it.

The term “predictive coding” is often loosely used to refer to processes that can also be called “technology-assisted review,” or “computer-assisted review.” There are many different products, and all of them are marketed as being superior to human or manual review, both in terms of cost-effectiveness and accuracy. Another judge had already opined that they should be used in “appropriate cases.”

While we can’t divine what the judge actually had in mind, it is interesting to read what he said:

“This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding. I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go. I would like you all to talk about a single discovery provider that could be used to warehouse both sides’ documents to be your single vendor. Pick one of these wonderful discovery super powers that is able to maintain the integrity of both
side’s documents and insure that no one can access the other side’s information. If you cannot agree on a suitable discovery vendor, you can submit names to me and I will pick one for you…I would really encourage you all, instead of burning lots of hours with people reviewing, it seems to me this is the type of non-expedited case where we could all benefit from some new technology use.” (Transcript October 15, 2012, pp. 66-67.)

Here is a comment from a blog post that came out after the ruling.

“Many attorneys shudder at the notion that the judiciary should choose (or at least strongly urge) the specific technology tools parties must use during discovery. The concern is based largely on the belief that many judges lack familiarity with the wide range of eDiscovery technology tools that exist today. For example, keyword search, concept search, and email threading represent only a few of the many technology tools in the litigator’s tool belt that can be used in conjunction with predictive coding tools to accelerate document review and analysis. The current challenge is that predictive coding technology is relatively new to the legal industry so the technology is much more complex than some of the older tools in the litigator’s tool belt. Not surprisingly, this complexity combined with an onslaught of new entrants to the predictive coding market has generated a lot of confusion about how to use predictive coding tools
properly.” (eDiscovery 2.0, Oct. 29, 2012)

The real lessson to be learned from this case is that parties should always work in a cooperative fashion to create their own e-discovery plan, including the form of search methodology to be used, rather than leaving it up to the court to make the first move.


Michael P. Carbone

MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields.   His exceptional combination of transactional and litigation experience enables him to handle complex litigation… MORE >

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