Predictive coding software is not just a game-changer for producing parties, it is invaluable for receiving parties as well, especially those faced with document dumps. Good predictive coding software ranks all documents in a collection according to the attorney trainer’s conception of relevance (or responsiveness). The software then orders all of the documents, from the most important, to the least relevant. The document ranking feature thereby empowers a receiving party to cull out the marginally irrelevant, or totally irrelevant documents that often clutter document productions. The receiving party can then review only the documents that it thinks are of the most importance to the case, the documents they want, and ignore the rest. That saves valuable time and effort, and transforms an ugly, imprecise, document dump into a delicious, high-tech feast of low hanging fruit.
Document dumps are sometimes an intentional bad faith tactic by a producing party designed to hide evidence or overwhelm the requesting party, but are usually inadvertent or the result of carelessness. See eg Gottlieb v. Iskowitz, 2012 WL 2337290 (Cal. Ct. App. June 20, 2012) (default judgment entered as sanction for intentional, bad faith document dump in violation of court order); Branhaven LLC v. Beeftek, Inc., _F.R.D._, 2013 WL 388429 at *3 (D. Md. Jan. 4, 2013) (sanctions entered under Rule 26(g) for discovery abuses, including a document dump); Losey, R. The Increasing Importance of Rule 26(g) to Control e-Discovery Abuses; Denny & Cochran, The ESI Document Dump in White Collar Cases; In re Fontainebleau Las Vegas, 2011 U.S. Dist. LEXIS 4105 (S.D. Fla. 2011); Fisher-Price, Inc. v. Kids II, Inc., 2011 WL 6409665 (W.D.N.Y. Aug. 10, 2012); Rajala v. McGuire Woods, LLP, 2013 WL 50200 (D. Kan. Jan. 3, 2013) (no sanctions entered and clawback enforced because the judge saw no evidence that plaintiff’s counsel, in producing the privileged material, “intended to overwhelm or burden the receiving party [with] documents largely irrelevant to the litigation.”)
I would like to think the intentional bad faith actions are rare. That has been my experience. What I usually see are over-productions arising out of concern of missing relevant documents. The producing party does not want to face expensive motions to compel, or worse, motions for sanctions for withholding relevant documents, as seen for instance in several of the cases cited above.
Other producing parties make document dumps because they simply do not know any better. They do not have predictive coding software and are relying on imprecise search methods, like keyword or human review. Alternatively, they have predictive coding type software, but they licensed the wrong kind of software (hey, it was cheaper) and it was not any good. Sometimes they chose good software, but do not know how to use it properly. Most vendors have very poor education systems and few are willing to tell their clients, who are often hard-nosed lawyers, that they are not using it right. The reality is, despite the ads, there is no easy button on good search. Just the contrary. Other times, a lawyer will have the right tools, and the skills to use them, but not the time to do the job right. They have a deadline to meet and do not have time to make a more precise production. They would rather err on the side of recall and full production.
For all of these reasons, and more, a producing party will often err on the side of over-production, either on purpose or due to negligence or inadequate time. Sometimes even when the producing party does a perfect job, there will still be too many documents for a receiving party to review them all within the time and money constraints of the case. Is this still a document dump? Not really, but it is still too-much-information, more than the receiving party needs.
Whatever the cause, in many cases, especially large cases, the receiving party ends up with a haystack of documents that effectively hides the information they need to prepare for trial. The receiving party then has essentially the same problem the producing party had, too-much-information, although on a lesser scale. Instead of making a fuss, and engaging in often futile motion practice, the smart receiving party will use predictive coding to sort the documents. They will then only review the documents that they want to see. That is the great strength and beauty of relevancy ranking, a feature that can only be found with predictive coding type software, as I will explain in greater detail in a future blog.
Relevant Is Irrelevant
Remember my fourth secret of search, relevant is irrelevant? See Secrets of Search – Part III. This Zen koan means that merely relevant documents are not important to a case. What really counts are the hot documents, the highly relevant. The others are nothing, just more of the same.
There can be hundreds of thousands of technically relevant documents in a collection, especially when an overly broad production request has been made, and complied with. The proper response to an over-broad request is, of course, an objection, dialogues with the requesting party, and failing resolution, a motion for protective order. But sometimes the court may get it wrong and order over-production, or the responding party might not care. Perhaps, for instance, the law firm profits from over-review. I have heard that still goes on. Or perhaps the responding party wanted to go ahead and produce everything requested, saving only privileged documents, for other reasons, such as, saving money by forgoing a careful review. Maybe they are making a document dump on purpose to hide the needles of hot documents in a haystack of merely relevant. Would it not be ethical to do so if the requesting part asked for this dump, perhaps even insisted on it? The requesting party is just getting that they asked for.
Whatever the reasons, sometimes the requesting party receives far too many documents, much more than they wanted. They are then in the position that most producing parties are in when they review their clients documents, they have too much information. That is why relevancy ranking ability is a great reason for a receiving party to use predictive coding software to review large document productions. Even if the production is not a dump at all, it is just large, the receiving party needs help from predictive coding software to go beyond the merely relevant to the highly relevant.