I had the opportunity yesterday to participate in the Seventh Circuit Electronic Discovery Committee Workshop on Computer-Assisted Review. The all-afternoon event was held in the impressive Everett M. Dirksen U.S. Courthouse, Ceremonial Courtroom, shown below.
The event opened with a keynote address by Jason R. Baron. I’m going to find a way to bring to this keynote speech to you very soon. For that reason, I won’t attempt to describe it now, except to say it was a big hit, and set the right tone for the whole event. I want to share the whole speech, word for word, because I have noticed that what Jason is thinking and talking about today, usually becomes what the rest of us focus on tomorrow. Such is the proper role of a thought leader.
The entire afternoon CLE on predictive coding was videotaped, thanks to underwriting from Symantec Clearwell, and when it is available I’ll also share the link to it here or on Twitter.
I was honored to participate in a mock hearing on the acceptability of predictive coding that followed Jason’s opening speech. I played the role of the judge and got to sit on the elevated bench with gavel. It was somewhat intimidating with U.S. Magistrate Judge Nan Nolan and other dignitaries looking on in the historic courtroom. In case you were wondering, I did not talk to myself before the ruling.
As to how I ruled on the well-argued cross motions for and against the use of advanced computer assisted review technology, that will have to wait for another blog, or the video, as I’m still in Chicago now watching a sunrise and only have time for this short note. Let’s just say my ruling may not be what you would expect and I left both sides unhappy. Can’t say the same for the beautiful sunrises in downtown Chicago that leave everyone smiling.
The mock hearing was unique in many respects, including the quality of argument and expert testimony by my fellow panelists. Participating with me in the mock panel playing the roles of counsel and experts were:
- Martin T. Tully, Partner and Co-Chair, Electronic Discovery & Evidence Practice, Katten Muchin LLP
- Sean M. Byrne, eDiscovery Solutions Director, Axiom
- Herbert L. Roitblat, Ph.D., Chief Scientist and Chief Technology Officer, OrcaTec
- Karl A. Schieneman, Founder and Host, ESI Bytes podcast and Founder, ReviewLess
The mock hearing presentation was also unusual in that it showed the pre-hearing preparation efforts of counsel and the parties. We watched as attorneys pretended to speak with their clients about predictive coding, and their experts. They dialogued, they argued, and they succeeded in narrowing the issues down for a ruling. I heard later that this method worked well to get a few important points across, although it was difficult for Martin and Karl who had to pretend that they were Luddites, well, at least anti-predictive-coding.
After the mock panel, the event concluded with a roundtable of experts discussing predictive coding, which we referred to as Computer Assisted Review or Technology Assisted Review. I was again honored to serve on the panel along with:
- Maura R. Grossman, Counsel, Wachtell, Lipton, Rosen & Katz
- Tomas M. Thompson, Senior Associate and Member of Electronic Discovery Readiness & Response Group, DLA Piper LLP (US) (Moderator)
- Jeffrey C. Sharer, Partner and Member of Electronic Discovery Task Force, Sidley Austin LLP
- Matthew Nelson, eDiscovery Counsel, Symantec/Clearwell
- David D. Lewis, Ph.D., Co-Founder, TREC Legal Track and Founder, David, D. Lewis Consulting
- Lisa Rosen, President, Rosen Technology Resources
Seventh Circuit Electronic Discovery Pilot Program Issues Final Report on Phase Two
Phase Two of the Seventh Circuit’s Electronic Discovery Pilot Program ended in May and the Final Report on that phase was issued yesterday. See: Phase Two Report. For more on information on the 7th Circuit Pilot program see their website at www.DiscoveryPilot.com. I think they have made fantastic progress and now serve as a role model for the whole country.
The Seventh Circuit Pilot Program is based on a statement of Principles. They are so important in my opinion that I reproduce them here in full.
This is a great set of principles and I like the language and terminology they use. Speaking of language, I began calling my specially trained e-discovery lawyers e-discovery liaisons back in 2008 (my current firm now has at least one liaison for each office). So I was pleased and amused to see the 7th Circuit’s use of the word when they began this program in May 2009. It is a catchy name, and I totally agree with the 7th Circuit that you should have experts like this involved wherever there is a significant e-discovery case.
The Seventh Circuit Principles Are Working
The Phase Two Report observes in the Executive Summary that the principles are having the desired effect on the practice of law among attorneys in the 7th Circuit jurisdiction.
[b]oth the Phase One and Phase Two surveys’ results show that in those cases in which the Principles had a perceived effect, those effects were overwhelmingly positive with respect to assisting attorneys’ cooperation and enhancing their ability to resolve disputes amicably, their ability to obtain relevant documents, and their ability to zealously represent their clients, as well as providing fairness to the process.
I only wish that other jurisdictions would follow suit because there is, believe me, a strong need for this influence on attorneys all over the country.