Recent Facts Emerge on ACEDS Attacks on Judge Peck in Da Silva Moore Predictive Coding Case

Posted on May 19, 2012 by Karl Schieneman

I originally posted a blog yesterday highlighting Sharon Nelson for writing this piece Da Silva Moore and the Role of ACEDS exposing the potential profit based motives behind ACEDS’s attacks on Judge Peck in the Da Silva Moore predictive coding case.  I know Sharon and she is extremely conscientious and ethical.  She is also not someone who is trying to grab a headline.  She earned her place in the E-Discovery world a long time ago.  I had added some of my thoughts on this topic yesterday but after spending an afternoon doing yard work and reflecting on this issue, I decided to let the pieces fall where they fall and remove the post.  This is a silly fight and detracts from the real issues in predictive coding.  Continue reading →

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A Great Week For Predictive Coding in Virginia (Global Aerospace) and Da Silva Moore

Posted on April 27, 2012 by Karl Schieneman

This blog post is about celebrating the great week in the field of predictive coding as there are now two orders in place allowing predictive coding to move forward.  I also conclude with a few observations about where the field is heading regarding validation.

On April 23, there was the ruling in the Virginia case, Global Aerospace Inc v. Landow Aviation.   As a result, there is now for the first time anywhere an order by a judge allowing a party to proceed with predictive coding despite the objections of another party.

The transcript is worth ordering to read first hand how the argument was framed between the two parties and how Judge James H. Chamblin reacted.  It is also much shorter, easier to follow, and I can’t resist, “cleaner than Kleen”.  My guess on comparing transcript sizes is Global Aerospace might be 50 pages long and the two transcripts I have read from Kleen are likely more than 600 pages long with no end in sight between the multiple defendants and the plaintiffs.  Continue reading →

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Virginia Case Predictive Coding Press Release

Posted on April 27, 2012 by Karl Schieneman
Below is the press release issued by Schnader Harrison regarding the recent order from a Virginia state court allowing predictive coding to go forward by the defendant in case.  I decided to re-forward this to congratulate Schnader Harrison on achieving this outcome.  As I have said in previous blog posts, order the transcript of the hearing.  It was well argued.
Press Releases

Schnader Successfully Argues a Motion In Favor of the Use of Predictive Coding in the Discovery of Electronically Stored Information

04/25/2012

This is the first time a court has directly authorized the use of predictive coding in the production of ESI and the motion was granted over the objections of the opposing party.

April 25, 2012 – Philadelphia, PA: On Monday, April 23, 2012, Judge James H. Chamblin of the 20th Judicial Circuit of Virginia’s Loudoun Circuit Court entered a protective order in Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al,  allowing three defendants, over objection, to use predictive coding as their selected method for processing and producing documents from more than 250 gigabytes of electronically stored information, which is a collection that exceeds 2 million documents.  Judge Chamblin expressly reserved the right of any receiving party to challenge the continued use of predictive coding should the production prove to be inaccurate or incomplete. Continue reading →

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Setting The Record Straight on Virginia Predictive Coding Case

Posted on April 25, 2012 by Karl Schieneman

When the order was signed on Monday at 4PM on April 23rd in the Global Aerospace, Inc. v. Landow Aviation, LP case in Virginia State court, we understood the significance of the moment.  For the first time, a court was issuing an order in the face of an adversary who did not want predictive coding to be used that the defendant should be allowed to use predictive coding.  We also understood that there were only 20 people in the room and it was possible that there could be some confusion over the case in the rush to get the story onto the Internet.  While I disagree with much of what has happened in Da Silva Moore case in NY, I do agree that the lobby supporting predictive coding and the interest the legal community has in this topic does attract a significant following of readers.  So now that many of the pundits have weighed in on the impact, I am going to try and play clean up duty and write what I see as the impact of Global Aerospace, with the advantage that I was there.  Continue reading →

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Da Silva Moore + Kleen = It’s All About the Math

Posted on April 11, 2012 by Karl Schieneman

It is nice to know that people are reading these blog posts.  It’s amazing how much more immediate a reaction is to a blog post than an ESIBytes podcast.  Now that I have had a chance to digest where we are at, I thought it would be a good chance to summarize where I believe the tea leaves say we are with Da Silva Moore and Kleen.  The posturing over judicial and vendor conspiracies, untested technologies, if an expert is competent and who should control the process selected for document review and production are really side issues in both of these cases.  The common strand in both of these matters is offering some comfort to an adversary that most of the ESI that is related to a case is in fact being produced and the gaps in production are not intentional but are caused by search and retrieval limitations.  Both cases are about this same issue and are less about predictive coding than people realize. Continue reading →

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Kleen Hearing Day 2 – The Battle of Boolean Searches versus Sampling and Predictive Coding and Attacking Expert Witnesses

Posted on April 2, 2012 by Karl Schieneman

These are my partial observations though I need to clarify that I didn’t see the entire hearing held on March 27th, because I flew in that morning and left near the end for a meeting.  So I encourage people to read the transcripts in their entirety when they come out as well as additional blog posts on this topic.

The Hottest Ticket in E-Discovery

When I decided to spend the extra $300 to come to Chicago a day early and watch the Kleen hearings, my rationale was this is probably the best entertainment dollar I could spend in E-Discovery given the relative novelty of predictive coding in law (as opposed to other fields).  For the price of what I might spend going to see a classic rock band like Bruce Springsteen or the Rolling Stones, I witnessed over 5 hours of entertaining E-Discovery skirmishes.  The battle of Kleen is a classic case of old school search and retrieval approaches of Boolean searches taking on new technology approaches of statistical sampling and predictive coding and not much middle ground in sight at this time. Continue reading →

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Contrasting Da Silva Moore and Kleen Predictive Coding Cases Part 2

Posted on March 27, 2012 by Karl Schieneman

This blog represents Part two of my initial analysis of Da Silva Moore and the Kleen case which was supplemented by my blog on the ethics of the inference raised by the Da Silva Moore plaintiffs suggesting an economic conspiracy between the defendants, Judge Peck and Recommind.  To wrap up Da Silva Moore, the final analysis I was planning to offer on this case as it stands right now was given by myself and Herb Roitblat, Chief Scientist at OrcaTec and Chairman of the Electronic Discovery Institute where we covered statistics and validation differences we have with those proposed by the plaintiff and defendant in more detail on ESIBytes in Validating Predictive Coding, Da Silva Moore and other Current Issues.  I am also linking to the blog post written by Herb Roitblat on this topic entitled Da Silva Moore Plaintiffs Slash and Burn their Way Through EDiscovery which adds a few more interesting points.  To summarize the problem I have with the plaintiff’s position is they are getting a huge amount of data to get comfortable with the validity of the predictive coding that has been done since they are getting the null set of documents and can see what the software is being instructed to leave out of the production as well as the ability to review results and make adjustments iteratively.  No plaintiff using key word searching has ever been given so much insight and opportunity to impact the quality of their review set with the exception perhaps of the federal government who typically hold all the cards in their investigations.  Is this a perfect outcome?  There is no such thing as perfect between warring parties in litigation.  But there is nothing unfair about this and much the plaintiff’s can be pleased about.

B. Kleen Products, LLC v. Packaging Corporation of America

So if you accept that Da Silva Moore is dictum in determining if parties should be forced to use predictive coding because the parties had already agreed to use predictive coding, the next big chance for THE DECISION to be written will be in the Kleen case.  Continue reading →

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Da Silva Moore Plaintiff’s Misguided Attack on Judge Peck

Posted on March 21, 2012 by Karl Schieneman

I didn’t realize I was going to write a blog post so soon about the same case, 10 hours or so after I posted my first analysis of the Da Silva Moore case.  However, I reviewed the recently filed Plaintiff’s Reply In Support of Rule 72(a) Objection to Magistrate Judge Peck’s February 8, 2012 Discovery Rulings and felt a need to respond to this attack on the predictive coding industry and Judge Peck personally.  I also disagree with significant portions of the reply brief.  Continue reading →

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Contrasting Da Silva Moore and Kleen Predictive Coding Cases

Posted on March 20, 2012 by Karl Schieneman

So now after traveling in Europe for two weeks, and eating too much steak in France, perogies in Poland, paella in Barcelona and lots of pasta in Venice, and don’t get me started on wine and beer consumption, I finally get to weigh in, no pun intended, on the now heavily blogged Da Silva Moore v. Publicis Groupe predictive coding case, written by Judge Peck and the Kleen Products LLC v. Packaging Corporation of America case going on in the 7th Circuit in front of Judge Nan Nolan.  The first post will cover Da Silva Moore.  Kleen is a much more complicated case at this point in time and this post will be far too long if I cover the cases together.

  1. Da Silva Moore v. Publicis Groupe

Da Silva Moore is an important case and decision but still a curious one given the amount of attention it is receiving for validating the use of predictive coding.  Continue reading →

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The Impending Vendor Versus Law Firm Ethical Battle When Predictive Coding Is Used

Posted on February 11, 2012 by Karl Schieneman

An area which I haven’t seen anything written on yet involving predictive coding involves the potential tension between vendors and lawyers in deciding what level of finding responsive documents is adequate when using predictive coding.  In a world where companies often hire vendors to handle many electronic discovery tasks such as review, processing, hosting and other technical project requirements, this issue needs to be thought through given a number of ethical considerations which will be discussed further in this post. Continue reading →

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