4 Responses to Top Ten e-Discovery Predictions for 2014

  1. Greg Fordham says:


    I think you are right on track with your predictions and I look forward to next week’s blog.

    I am a little surprised, however, that your first prediction regarding Moore v Citgo will have taken so long. I had thought it would have happened much sooner after Pension Committee. Although the buzz on that case involved the written litigation hold, recall that the sanctioned parties there were all Plaintiffs. Moreover, they had all performed the equivalent of a “targeted data preservation” which is really common today in e-discovery cases. In other words the Plaintiffs preserved the documents they thought were relevant. It was not until much later when they received the defendant’s defenses and production requests that they realized there was another group of documents that were also relevant but they no longer had them. Had the Plaintiffs performed Forensic Grade Imaging instead of Targeted Data Preservation they would have likely still had the documents requested by the defendants.

    You may also recall an article from November 2010 that was published in the Duke Law Journal, “Sanctions for E-Discovery Violations: By the Numbers”, by Dan Willoughby, Rose Jones and Gregory Antine. As I recall of the approximate 400 cases that they examined about half involved preservation issues and about a quarter of those involved Plaintiffs.

    So, I have long thought that it was only a matter of time before defense counsel wised up and attacked the preservation procedures of Plaintiffs more aggressively. Even if they did not pursue sanctions, I have thought that Defense counsel would attack the authenticity of damaging documents when they were preserved using a Targeted Data Acquisition, since in a Targeted Data Acquisition one does not have the necessary system metadata to make sure that the media from which the document was harvested was not a counterfeit—I encounter counterfeit media or at least doctored media quite often. Instead, lawyers tend to authenticate documents with witnesses claiming knowledge of the document and not experts authenticating the media from which the document came.

    I hope you are correct about your fifth prediction. It is about time, although the old boots on the ground approach still seems alive and well to me. It will likely take clients to realize what is really happening to them and either complain or file a grievance under one of the professional standards. There is the new comment in the model ABA rule that expects lawyers to be more technology competent and in some states there is greater expectation of lawyers to bill fees that are more reflective of the case’s requirements. In other words, if technology assisted review, even if it was just some form of keyword search, could have been more efficient and effective than the absurdly stupid eyes on every document approach then there could be the basis for a complaint when the lawyer chose the attorney’s eye on every document approach.

    I am also very pleased with your seventh comment. I have read a lot of your blogs on predictive coding. I was beginning to think that you were pushing predictive coding as a technology providing the kind of precision that one sees in machining fasteners in the aerospace industry where tolerances can be in the millionths of inch. Even with your push for single SME usage predictive coding will never be a silver bullet for several reasons. First there is always the judgmental issue between SMEs. Second, even an SME’s theory of the case could change from the start of the discovery and the selection of the training sample to what it might be 6 months or a year into discovery where the training set might need to look very different. So, the precision desired with subject matter expertise might not be that great of a benefit if it misses the boat in the end. Thirdly, there is sampling error. The confidence and precisions typically used are only 95 percent plus or minus 2.5 percentage points precision. So, even if all of the technical issues about statistical sampling are handled properly by the litigation team and I have my concerns, there is still a 7.5 percent chance that the training set is not representative of the population or the conclusions being reached about the population.

    So, I am very much in agreement that lawyers should see predictive coding as quite a weapon but they should also see it as only one weapon in a vast arsenal of different methodologies that includes other search techniques, analytics, multi-stage discovery or proportionalism, better 26(f) conference planning and many others. Furthermore, each case should likely see implementation of many of these different techniques. Only the mixes and implementation of the different technologies will differ between matters.

    Happy New Year.

  2. Ralph, this is a pretty credible list.

    Regarding the 502(d) issue, besides it being a risk manager, it saves money. Despite the fact that judges and others on CLE panels are teaching it, we are all blogging or whitepapering it http://www.d4discovery.com/2013/11/whitepaper-the-importance-of-federal-rule-of-evidence-502/ , and the courts are putting out model orders, we see relatively little adoption by litigants in their exchange of discovery protocols. How can we increase adoption? Should they be including a 502(d) agreement and order as part of their exchange of discovery protocols, or should they present it as a separate stipulation and order for the court to sign?

    BTW, I think for a #11, there will be at least some action in the courts regarding eDiscovery imperatives, privacy rights and BYOD.

    All the best,

  3. Thomas Bonk says:

    Regarding item #9 I wouldn’t characterize FIOS’s acquisition by DTI, an acquisition that was part of a very normal business cycle consolidation, as a business failure. FIOS did not declare bankruptcy.

  4. […] Top Ten e-Discovery Predictions for 2014 Posted on January 1, 2014 by Ralph Losey […]

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