Meanwhile, back at the ranch ... With all eyes on United States District Court Magistrate Judge Andrew Peck's orders involving "computer-assisted review" and plaintiffs' challenges in Da Silva Moore in the Southern District of New York, another decision weighing the automated review technology, Kleen Products, LLC, et. al. v. Packaging Corporation of America, et. al., is quietly playing itself out in the Northern District of Illinois.
As related in a post by Matthew Nelson, senior e-discovery counsel at Symantec, on the e-discovery 2.0 blog, this time out it's the plaintiffs challenging the defendants' discovery methods because they didn't use predictive coding. In a federal antitrust case before Magistrate Judge Nan Nolan, the plaintiffs attorneys are requesting that the defendants redo production. As Nelson describes it the plaintiffs' argument appears to be "that defendants should have used predictive coding to avoid the limitations of keyword search tools."
Symantec owns Clearwell Systems, and its e-discovery software is being used by at least one of the defendants, according to the transcripts of the first evidentiary hearing in February. With review 99% complete and more than a million documents already produced, Nelson (remember, he's not exactly an disinterested party here) questions the timing of the plaintiffs challenge.
Is this merely a bid by plaintiffs to have the other side pay for the plaintiffs' culling and filtering? With a second hearing completed March 28 and a third day of hearings scheduled, Da Silva Moore isn't the only show running.
For more on the two cases, check out the eDiscovery Journal and the Document Review MD Blog.
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