Staying 'Above the Fray' in Litigation

A Three-Brained Approach to Reasonable and Just E-Discovery:

All experienced litigators know that they can best serve their client's interests by staying above the fray of the virulent emotions inherent in most disputes. Our system of justice requires attorneys to provide objective counsel, clear and untainted by the animosity of the parties. How should you react in the rare instance when an opposing counsel intentionally adds fuel to the fire for their own ends? Several slogans apply, such as "don't get mad, get even" and the favorite of all mothers, "two wrongs don't make a right."

I agree with both homilies and show in my latest blog, Litigation, e-Discovery, e-Motions, and the Triune Brain, how the evolutionary model of brain functioning popularized by Dr. Paul MacLean (1913-2007), Yale Medial School, can help us to make sense of it all. I also explain why you don't want a dog for a lawyer, even though they can be quite cute.

In addition, I consider the ancient torts of champerty and barratry and provoke a comment by Craig Ball, and others, that some defense counsel are just as bad a plaintiff's counsel ambulance chasers. I attack abusers and flame throwers on both sides of the "v", plaintiffs and defense counsel, and call for a reason-based approach to litigation and e-discovery.Transcend your emotions and stick to business. That is the best way to get even. Justice is best attained by a calm rational approach.

You may be surprised to find that after 33 years of hard-knocks litigation where I have had to deal with dirty tricks and unscrupulous lawyers and parties of all kinds, I still remain positive and optimistic. They are really a very small minority. Our system of justice, for all of its faults, remains the best in the world. It may not be perfect, but at least we have e-discovery, and, as usual, we are the world leaders.

Image: Ralph Losey

Headin' Home

It's been a whirlwind LegalTech West Coast (aka L.A.) and I'm headed back to the Big Apple. Congrats to Henry Dicker and his crew for a lively and educational show; and thanks to all of you who took time from your agenda to chat with our LTN team. 

Of course, e-discovery was front and center. Check out Michael Roach's thoughtful report about the panel, "Under Fire: Defending and Challenging Technology-Assisted Review" -- which featured Kroll Ontrack's Andrea Gibson (moderator), and speakers  Tom Werner, an associate at Irell & Manella; Pallab Chakraborty, director of e-discovery at Oracle;  and Jeffrey Fowler, partner at O'Melveny & Myers.

I covered the Day 1 and Day 2 keynotes, and of course, iPads, iPads, iPads. One really pleasant surprise was the dramatic changes at Starwood's Westin Bonaventure Hotel & Suites. It never was a favorite of mine, but this trip really changed my mind. It sometimes amazes me how many business people don't realize that bottom line, customers want to be heard. Read my commentary about the lessons learned -- that can apply to our technology community, here.  And here's a very thoughtful response and great advice from Aderant's Jim Hammond, "How to be a Happy Customer."  (Hat tip: Jeffrey Brandt.)

#LTWC posts were flying, from Rob Robinson, Recommind, Traveling Coaches, LexisNexis, LegalTechShow, Phillip Lemel, RenewData, Derick Roselli, Perry Segal - Charon, Monique Altheim, ABBYY USA, Associated Blogs, Anatoly Soyfer, eDiscovery, lawtechnews (me), and others.

Image: WikiMedia Commons (Floria).

The 24/7 Andrew Peck Show

Greetings from LegalTech West Coast in relatively-smog free and sunny Los Angeles. Day one (Tuesday May 22) was full of energy and standing-room only presentations with, as usual, tons of e-discovery in the seminar rooms (and on the busy exhibit hall floor). It's not too late to stop in for Day 2 (today, May 23); it's at the downtown Westin Bonaventure and one day tickets are available if you want some education, demos, and CLE credits.

Topic A among the L.A. EDD crowd, as expected, is the closely-watched Da Silva Moore case, where U.S. District Court Magistrate Judge Andrew Peck has ordered the use of computer-assisted coding (aka predictive coding). Law Technology News is one of those closely-watching, our most recent story is here.

On the blawg-o-sphere, attorney Sharon Nelson, (left) president of Sensei Enterprises, has been monitoring the DSM sideshow in her ride the lightening blog. See her latest post, "Da Silva Moore: EDD's Version of Keeping Up with the Kardashians," is  here.

Peck and his Second District colleague Lisa Smith gave a terrific program Thursday evening at the New York City chapter of Women in Discovery -- demonstrating his trademark wit and substantive knowledge. See "Federal Judges Preside Over Women in E-Discovery Meeting."

But Tuesday's LTWC keynote address reminded us that Peck isn't a one-trick pony judge doin' nuttin' but e-discovery 24/7/365. (He did win LTN's 2011 Champion of Technology Award). Peck's turf also has included overseeing another matter that kept lawyers chewing their fingernails -- to say nothing of anybody with a dollar in a bank. Kevin Genirs (left). In his keynote address yesterday, "2008 v. 2012: Lessons from the Lehman Brothers," described how Peck oversaw the frantic, sleep-deprived, mega-lawyered transactions under excruciating deadlines that ultimately resulted in the sale of Lehman Brothers ("for the price of our building") to Barclays, praising Peck for recognizing the global impact of the sale on the stability of financial markets, and Peck's non-stop efforts to get the deal consummated. Genirs, who had been general counsel, investment banking, at Lehman's, was one of the 10,000 Lehman workers who had new jobs with Barclays when the sun rose the next day.

Later this morning, check out www.lawtechnologynews.com for my colleague Michael Roach's  report on "Under Fire: Defending and Challenging Technology-Assisted Review," which featured Irell's Tom Werner, O'Melveny's Jeffrey Flower, Oracle's Pallab Chakraborty, and moderator Andrea Gibson, from Kroll Ontrack (the sponsor of the Litigation Technology Track." Yes, DSM and Peck were front-and-center in the discussion!

Meanwhile, you can keep up with all the substance and occasional drama about Peck on our website's home page www.lawtechnologynews.com, and its E-Discovery/Compliance "channel" -- and right here at EDD Update. Onward to Day 2! 

Update 5/24: Oooops. Who knew there were two Judge Pecks in the Southern District of New York! Actually, many -- and Silicon Valley consultant Mark Michels, a member of LTN's editorial advisory board, was the first to advise me that I goofed. It wasn't Andrew Peck, it was Judge James Peck, of the U.S. Bankruptcy Court. But you get my point.

P.S. Here's Michael's story 

Photos: Monica Bay, except for Sharon Nelson (courtesy of ride the lightening)

LegalTech West Coast: Day One

As LegalTech West Coast rolled into Los Angeles Tuesday at the Westin Bonaventure, it's a good opportunity to bring your e-discovery knowledge up to date from exhibits and educational sessions.

In a track sponsored by Kroll Ontrack Tuesday, "Litigation Technology: Trends, Technology & Innovations," two panels piqued my interest. The first, titled "A 'Stormy' Subject ... Exploring Cloud-Based E-Discovery," was moderated by Wayne Wong, (top right) managing consultant at Kroll, and features Scott Sachs, (left) e-discovery attorney for Atkinson Andelson, and Adam Sand, (front) associate general counsel for Ancestry.com and former general counsel of ZL Technologies, an e-discovery and compliance software provider. The 10:30 a.m. discussion examined both sides of e-discovery in the cloud: the issues involved in collecting and preserving data stored in cloud-based models as well as using software as a service-based e-discovery tools versus on-premise software.

With Da Silva Moore, Global Aerospace, and Kleen Products bringing predictive coding into the courtroom, "Under Fire: Defending and Challenging Technology-Assisted Review" at 1 p.m. is topical. It was moderated by Andrea Gibson, product director of Kroll Ontrack, with speakers Tom Werner, associate at Irell & Manella, Jeffrey Fowler, partner at O'Melveny & Myers, and Pallab Chakraborty, director of e-discovery at Oracle. This is the year predictive coding stormed into the courtroom and the technology continues to stir controversy. Even proponents of the technology at law firms and discovery service providers I've spoken to have said they'd limit the technology to first-pass review or even culling the opposing side's production -- but not yet for full review. The panel addresses this, as well as other technologies that assist the review process, watch for my report on www.lawtechnologynews.com.

The track's third panel at 3:30 p.m. was "Exploring Hot E-Discovery Trends: FRCP Amendments, Social Media, and Emerging Case Law."

Photo: Monica Bay

Good Rule of Thumb for Cost Estimations

I've got a good rule of thumb for you from the world of statistics to help remember the approximate costs involved in quality control.

A double in quality costs about four times as much. Put another way, if you want to reduce your random error sampling rate in half, and thereby double the accuracy of your sampling, your cost to do so will quadruple. It will quadruple because you will have four times as many documents in the sample to review. Twice the quality at four times the cost. Not such a great deal, but that's the way it is. Hopefully the picture of my old unmanicured thumb will help you to remember this.

For the full details of the relationship between confidence intervals and sample size, see my blog on random sampling. Random Sample Calculations And My Prediction That 300,000 Lawyers Will Be Using Random Sampling By 2022.

I updated this blog today with new information, including the rule of thumb that I picked up from a statistics book that I looked at on my vacation last week. (Sad, but true!) I also added a good graph that I saw in Geoff Black's interesting presentation yesterday at CEIC.

I did not attend, but I studied his Powerpoint. Geoff also added a good comment to my blog post. We are now up to 17 responses, proving that there are indeed many math nerds in the world of e-discovery.

Image: Ralph Losey

How I Blog So Much?

I get asked all the time how I blog so much. (Funny, people rarely ask me why.) Because I get asked this question so often, I decided to share bits of an interview I did recently for Andrew Bartholomew of e-Discovery Beat. I told him he could ask me anything, except, of course, for the questions that he really wanted to ask concerning a particular case that my law firm is handling.

Andrew put the audio of the entire interview online, and added an edited transcript of selections in two segments: part one and part two. His first question out of the box concerned my obsessive blogging. Actually, he did not call it that, he was quite flattering. But that is how my wife refers to it. Here is how my answer begins. For the full story please see, what else, my blog.

Losey: When I first started doing this in 2006, the blog posts were shorter and I didn’t provide a whole lot of analysis. I was mainly talking about new cases. But after doing this every week for five-and-a-half years now, it has become second nature. I find that my writing evolves as my own understanding evolves.

I’m pretty opinionated at this point because I've been doing it so long. I have become the analysis and opinion guy in e-discovery. I don’t try to report on each new case that comes out. ...

Now would someone please explain to my wife that blogging is not just an narcissistic, obsessive waste of time?

Image by Ralph Losey

More News on Plaintiffs' Effort to Recuse Peck

In the latest round of Monique da Silva Moore v. Publicis Groupe and MSLGroup, Magistrate Judge Andrew Peck denied an amicus brief in support of the plaintiffs' motion for his recusal, Sean Dohery writes.

The brief was filed by Richard E. Flamm, a Berkeley, Calif.-based attorney and author of Judicial Disqualification: Recusal and Disqualification of Judges retained by the plaintiffs as an expert witness. Peck denied the motion to file the brief, writing "an alleged amicus brief that is paid for by plaintiffs is hardly necessary or appropriate." Read the full story on LTN online.

For more on the plaintiffs' recusal efforts, read their reply memorandum supporting the motion for recusal (.pdf) and its supporting exhibits (.pdf), filed May 10.

Image by Monica Bay

7th Circuit Holds Cell Phone Videos Are Protected

Every time a public figure speaks these days, smartphones are there to record the speech.

A key question: Is this legal?

That was the issue addressed last week by the Seventh Circuit Court of Appeals. The case is American Civil Liberties Union of Illinois v. Alvarez, 7th Cir. No. 11-1286 (May 8, 2012).

The court reviewed a challenge to the Illinois eavesdropping statute, which makes it a felony to audio record "all or any part of any conversation" unless all parties to the conversation give their consent, and includes any oral communication regardless of whether the communication was intended to be private.

In Chicago, citizens had started a "police accountability program," which included plans to openly make audiovisual recordings of police officers performing their duties in public places and –- a fact that makes the statute applicable -- speaking at a volume audible to bystanders. When persons involved in the program feared prosecution, the ACLU challenged the eavesdropping statute on First Amendment grounds on their behalf.

The court held that the statute, in these circumstances, violated the First Amendment.

Read the full article on LTN online.

The image is in the public domain

TREC on Hiatus for 2012

With a new data set not yet ready and its 2011 results nearly two months late and counting, TREC Legal Track's annual document review project for testing new systems has been canceled for 2012, reports Evan Koblentz. In related news, Recommind confirmed that it's been asked to leave the project for prematurely disclosing the company's 2011 results.

Part of the U.S. Text Retrieval Conference, TREC Legal Track is used by researchers from academic and corporate sectors to test the precision and recall of newly developed technologies. Read the full story on LTN online.

Image by Tilman Piesk

Webcast on Information Governance and E-Discovery

Exterro and Hitachi Data Systems have announced a webcast, "E-Discovery and Information Governance: Assessing Needs and Aligning Priorities," to air on May 16.

LeClair Ryan partner Dennis Kiker, Marcelline Saunders, senior product manager at Hitachi, and Jonathan Preston, Hitachi's business development manager, will discuss the intersection of e-discovery and information governance and present best practices. Joe Aakre, e-discovery solutions consultant at Exterro, will serve as moderator.

The webcast is complimentary and airs at 1 p.m. Eastern Time/10 a.m. Pacific Time. Registration is available at www.exterro.com/events-and-webcasts.

80% of Super-Nerd "Bubble People" Use Random Sampling

I estimate that 80% of the elite few who attend Sedona, as  mentioned in my last blog, already use random sampling as part of their e-discovery work. But Sedona members are a small group of dedicated specialists. They reside in that arcane space that Paul Weiner calls "the Sedona Bubble."

I must qualify my estimate by saying I have about only a 90% confidence level in that 80%  number. Moreover, I suspect that my margin of error, aka confidence interval, is a high one of 10%. That means that as few as 70% in fact use sampling, or as many as 90%.

Moves at Daegis, TrustPoint, AccessData, Womble Carlyle

This week's EDD industry news from LTN online includes a new e-discovery president at Daegis, a litigation support provider and an attorney review firm joining forces, product improvements at AccessData, and another law firm adopting Relativity.

Daegis announced its hiring of Deborah Jillson, formerly of AccessData and LexisNexis, as president of its e-discovery division. Jillson plans to add cross-matter management and predictive coding to Daegis' product line by this summer.

Atlanta-based litigation support provider TrustPoint International is merging with attorney review firm Excelerate Discovery to bring managed review and e-discovery products and services together under one company name. TrustPoint also added OrcaTec's Document Decision Suite, which incorporates OrcaTec's random sampling approach to predictive coding, to bring more bang for your e-discovery buck.

'Da Silva Moore' Plaintiffs' Discovery Objections Continue

From the not-exactly-surprising department: Plaintiffs in the now-famous Monique da Silva Moore, et al. v. Publicis Groupe SA and MSLGroup case are objecting to Magistrate Judge Peck's denial of their request to stay discovery until plaintiffs' motions and objections have been resolved. Our technology editor, Sean Doherty, posted the full story at Law Technology News.

Image by Clipart.com

Are You an E-Discovery Super Nerd?

Do you know what this formula means? Do you know how to use it to make your productions more defensible? Your quality control efforts more efficient? If so, congradulations, you are a super-nerd! If not, well, you're just a nerd. Check out my first attempt at blogging about math and statistics and up your game to super-nerdom status. I'm 95% confident that 50% of you will be glad you did, plus of minus an error ratio of 10%.

Already a super-nerd? Or at least think you are? Try the math out and test your skills. Then leave a comment. Craig Ball already did, and it caused me to make a minor change to my predictions concerning this formula. Maybe your comments will have an impact too.

Back from the Vintage Computer Festival East

Miss my byline at Law Technology News since last Thursday? It's because I was at the Vintage Computer Festival East 8.0, which is a hands-on celebration of computer history -- it includes historical lectures and technical workshops in the morning, an incredible exhibit hall in the afternoon, and a consignment sale all day long. It's held at the all-volunteer InfoAge Science Center in Wall, N.J., where there's a wing devoted to computer history. That wing, and the VCF East, are run by yours truly. Forward-looking technology is my day job here at ALM, but my real passion is the history of technology.

300,000 Lawyers Will Use Random Sampling by 2022

Almost all of the e-discovery elite already use random sampling as part of their practice. They are the group that Paul Weiner calls lawyers in the "Sedona Bubble." But how about the rest of the profession?

I think very few mainstream lawyers are using this important quality control tool. In fact, I estimate less than 2% now do so. Probably far less. But this will change, soon and fast, because this is too important and powerful a tool to do without.

I predict that in 10 years 20% of the lawyers in the U.S will use random sampling. I also explain the math behind sample size calculations in my latest blog: Random Sample Calculations And My Prediction That 300,000 Lawyers Will Be Using Random Sampling by 2022.

Image by e-Discovery Team blog

'Da Silva Moore' Defendants Oppose Motion to Recuse

The defendants in Monique da Silva Moore, et al. v. Publicis Group SA, et al. (Case No. 11-CV-1279), on April 30 filed a formal opposition to the plaintiffs' motion to recuse or disqualify Magistrate Judge Andrew Peck. The defendants ("MSL") have also requested that the court award attorneys' fees and costs incurred in filing their motion.

Read the full article, "Defendants in 'Da Silva Moore' Oppose Motion to Recuse Judge," on LTN online.

Image by Clipart.com

Predictive Coding Takes: the Court and the Market

Responses to Andrew Carters' recent affirmation of Judge Peck's decision authorizing the use of predictive coding in da Silva Moore continue to roll in.

For more opinions from legal practitioners and industry veterans on what this all means for legal technology, read Evan Koblentz' article for LTN online, "Take Two: Reactions to 'Da Silva Moore' Predictive Coding Order."

In the midst of all the prognostications about machine learning and the discovery process, New York-based litigation support provider Empire Discovery announced its adoption of OrcaTec's Document Decision Suite, highlighting its predictive coding capabilities. OrcaTec's technology is being put to use in the source of last week's other judge's order involving predictive coding, Global Aerospace.

Read about the OrcaTec deal here.

Image by Clipart.com