Archives – February, 2012

Judge Peck’s DaSilva Opinion: What You May Have Missed

In his recent opinion in Da Silva Moore v. Publicis Group, Case 1:11-cv-01279-ALC-AJP (S.D.N.Y.), Judge Peck has for the first time judicially accepted the use of computer-assisted review/predictive coding (CAR/PC) tools in an ongoing litigation matter.  Despite the buzz and apparent popularity of CAR/PC over the last few years, the two most common questions raised over, and presumably hindering, its use has been: (1) is there judicial acceptance (i.e., is it defensible)? and (2) how easy is it to use?  With his recent opinion, Judge Peck has effectively answered one of those questions when he recognized that “computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.” Id. at 2.

In Da Silva Moore the parties submitted final versions of their CAR/PC protocol on 17-Feb, Judge Peck issued a written stipulation and order last week on 22-Feb essentially accepting defendant’s general CAR/PC protocol, which plaintiffs promptly objected to (the gist of their objections were essentially defendant’s protocol were not transparent enough).  While Judge Peck’s order this past Friday did address plaintiff’s objections, I wanted to use this space to summarize some of the key takeaways from his opinion vis-à-vis the use of CAR/PC going forward.

  • The Court did not order use of CAR/PC but is accepting its use – “[T]he Court did not order the parties to use predictive coding. The parties had agreed to defendants’ use of it, but had disputes over the scope and implementation, which the Court ruled on, thus accepting the use of computer-assisted review in this lawsuit.” Id. at 2, fn.1.
  • The parties must do what is reasonable and proportionate under the circumstances, and not meet some standard of perfection – This is position is codified in FRCP 1 and 26 taken together.  “While this Court recognizes that computer-assisted review is not perfect, the Federal Rules of Civil Procedure do not require perfection…. Courts and litigants must be cognizant of the aim of Rule 1, to ‘secure the just, speedy, and inexpensive determination’ of lawsuits…. That goal is further reinforced by the proportionality doctrine set forth in Rule 26(b)(2)(C).” Id. at 21-22.
  • The Court endorsed usage of the Sedona Cooperation Proclamation model – “[T]he best approach to the use of computer-assisted coding is to follow the Sedona Cooperation Proclamation model. Advise opposing counsel that you plan to use computer-assisted coding and seek agreement, if you cannot, consider whether to abandon predictive coding for that case or go to the court for advance approval.” Id. at 5.
  • Both parties will have to review a “seed” set – “I’m also saying to the defendants … [i]f you do predictive coding, you are going to have to give your seed set, including the seed documents marked as nonresponsive to the plaintiff’s counsel so they can say, well, of course you are not getting any [relevant] documents, you’re not appropriately training the computer.” Id. at 6.  NOTE: the parties agreed to do this in Da Silva Moore, but only after first removing privileged documents.
  • CAR/PC can be expensive – Defendant’s wanted to only produce the top 40,000 documents (which would have cost them $5/doc or $200,000).  The Court rejected that by saying “where [the] line will be drawn [as to review and production] is going to depend on what the statistics show for the results … if stopping at 40,000 is going to leave a tremendous number of likely highly responsive documents unproduced, [defendant’s proposed cutoff] doesn’t work.” Id. at 6.  “While cost is a factor under Rule 26(b)(2)(C), it cannot be considered in isolation from the results of the predictive coding process and the amount at issue in the litigation.” Id. at 24.  “Staging of discovery by starting with the most likely to be relevant sources (including custodians), without prejudice to the requesting party seeking more after conclusion of that first stage review, is  a way to control discovery costs.”  Id.
  • CAR/PC is not meant for all cases, but should be used in “appropriate” cases – “Computer-assisted review appears to be better than the available alternatives and thus should be used in appropriate cases.… In this case, the Court determined that the use of predictive coding was appropriate considering: (1) the parties’ agreement, (2) the vast amount of ESI to be reviewed (over three million documents), (3) the superiority of computer-assisted review to the available alternatives (i.e., linear manual review or keyword searches), (4) the need for cost-effectiveness and proportionality under Rule 26(b)(2)(C), and (5) the transparent process proposed by [defendant].”  Id. at 21-22.

Despite the significance of this ruling it’s also important to not lose context.  Da Silva Moore is an ongoing matter and as such, may yet yield additional rulings that may further clarify Judge Peck’s positions on CAR/PC.  Further, there are other judges and cases out there that may further define the use of CAR/PC tools (see e.g., Kleen Products v. Packaging Corporation of America currently being argued in the Northern District of Illinois where plaintiffs are arguing the court should order defendants to use CAR/PC tools in lieu of keywords).

That said, Judge Peck’s view of the use of CAR/PC is consistent with Pangea3’s view of the same.  We embrace and encourage the use of CAR/PC tools when appropriate and believe its use can be a very effective tool when correctly applied.  Further, Pangea3 concurs with the position Judge Peck has stated in previous articles and strongly implies in the Da Silva Moore opinion, namely the question of defensibility RE: CAR/PC does not turn on the type of technology used, but rather on the process surrounding use of that technology. To that end, Pangea3 has developed its own CAR/PC protocol that has already incorporated some of the thoughts Judge Peck has articulated in Da Silva Moore, and that Pangea3 applies regardless of the CAR/PC technology utilized.  Our documented protocol ensures a consistent, repeatable and therefore we believe, defensible, process governing the application and use of CAR/PC within the review structure.  Finally, we believe that our basic review/QC/QA methodology is tailor-made for use with this technology (i.e., our QC/QA process results in a more accurate “seed” set than would otherwise occur without our built-in checks and balances).

1 Comment February 29, 2012

New Pangea3 Case Study: Regulatory Monitoring

Staying on top of compliance in a highly regulated industry is a critical, but daunting task. Insurance is among the most highly regulated industries, and the regulations with which insurance companies need to be compliant are constantly changing. Insurance companies must keep up with these changes, or face penalties—but there are many steps between being informed of a change and becoming compliant with it, and insurance companies often struggle to stay current, lacking the manpower and time needed to fully understand and implement each regulatory update.

Read a new case study that details how Pangea3 helps a large insurance company track constantly shifting regulations.

Leave a Comment February 24, 2012

Time Running Out to See Complimentary Pangea3 and NYLJ On Demand Webinars

 Last year, Pangea3 partnered with the New York Law Journal to create a series of three webinars. Two are still available on demand:

  • “Un-tying the Know: Structuring effective relationships among in house counsel, outside counsel and third party providers in litigation,” which includes a review of the ethical duty to supervise third party providers in litigation, will be available through February 22.
  • “Deeper and Deeper: Recent trends in securities related litigation and what you need to know” is an in-depth look at the trends in MBS litigation of 2011 and beyond, and will be available through March 14.

To register click here.

Leave a Comment February 22, 2012

Legal Process Outsourcing News Roundup

Are you caught up on the latest news on the legal process outsourcing news?  If not, here are a few recent articles that cover the LPO industry:

To read the latest legal and legal process outsourcing news sign-up for our weekly newsletter, the Weekly Pangean.

Leave a Comment February 21, 2012

Edward Sohn Joins Pangea3 as Director of Litigation Solutions

We are pleased to welcome Edward Sohn to Pangea3.  A seasoned litigator, he joins a growing team of U.S. litigators responsible for managing and overseeing Pangea3 document review projects out of its three delivery centers in Mumbai, Delhi and Dallas, TX.

Based in the Pangea3 Delhi office, Ed contributes his extensive experience in managing all aspects of the eDiscovery process including preservation, collection, review, production and fact investigation, ensuring that Pangea3 clients receive superior quality through cost effective and efficient processes. His role involves developing the strategy for new client engagements, managing client-dedicated project teams and mentoring project managers. He joins a team of over 500 seasoned litigators and document reviewers who manage Pangea3 litigation projects in the U.S. and India.

Prior to joining Pangea3, Ed was a Senior Attorney in Business Litigation at King & Spalding, LLP in Atlanta, Georgia.  At King & Spalding, he represented financial institutions and Fortune 500 companies in matters related to civil and regulatory financial claims, class action and securities litigation, government investigations, healthcare litigation and commercial disputes. 

“Adding Ed’s expertise to our strong litigation team is another demonstration of our commitment to providing the highest quality work and superior experience to our clients. Litigation document review is a cornerstone of our business and we’re seeing a continuing trend of corporate legal departments and law firms outsourcing document review to experienced providers like Pangea3,”  says Greg McPolin, Vice President, Global Head of Legal Solutions.

Sohn has a J.D. from the University of Pennsylvania Law School and is a member of the State Bar of Georgia.

Learn more about the Pangea3 litigation solutions.

Leave a Comment February 21, 2012

Pangea3 is a Gold Level Sponsor for the 2012 CLM Annual Conference

The CLM conference will be one of the largest, fully inclusive defense industry conferences in 2012. It will be held March 28-30 in San Diego, California where more than 80 collaborative educational sessions featuring more than 300
speakers are scheduled and is expected to draw attendees from around the world.  Pangea3 is a proud sponsor of the CLM Annual Meeting, and Greg McPolin, Vice President, Global Head of Legal Solutions will be representing Pangea3 at the conference.

For more information, click here.

Leave a Comment February 2, 2012


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