EORHB v. HOA Ruling Sends Shockwaves Across eDiscovery World
Predictive Coding, Technology Assisted Review (TAR), Conceptual Search, whatever the current term of choice, technology leveraged document review is the hottest topic in the eDiscovery space today. Conferences, white papers and bloggers from around the world are buzzing about judicial activism and steps taken by the bench to encourage broader use of the advanced tools available to drastically reduce eDiscovery cost. But, if recent cases have opened the door to broad acceptance of predictive coding, EORHB, Inc., et al v. HOA Holdings, LLC has the potential to blow the door off its hinges.
U.S. District Court for the Southern District of New York in Da Silva Moore v. Publicis Groupe, and the Circuit Court for Loudon County, Va., in Global Aerospace v. Landow Aviation, have approved the use of predictive coding in appropriate cases.
Judge Peck’s order in Da Silva, a case in which both agreed to utilize Predictive coding, let the legal community at large know that “"predictive coding should be used in the appropriate case" and practitioners need no longer fear being a guinea pig. Global Aerospace went one step further, compelling opposing Counsel to accept a production derived from a predictive coding workflow. However, in one of the subsequent hearings in the Kleen Products, LLC, et. al. v. Packaging Corporation of America, et. al., Judge Nolan (another heavy weight in the evolving eDiscovery space) cautioned that:
“[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information,” and as such “the defendant under Sedona 6 has the right to pick the [eDiscovery] method.”
A GAME CHANGING DECISION
A Delaware judge,Vice Chancellor Laster, took matters into his own hands, when he proactively decided to require both parties to use predictive coding, or show cause as to why they should not use predictive coding technology, to manage electronic discovery. Judge Laster gave both parties two options; either they use the same vendor of their choosing, or he would “pick one for them".
“This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding. I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go.
I would like you all to talk about a single discovery provider that could be used to warehouse both sides’ documents to be your single vendor. Pick one of these wonderful discovery super powers ... If you cannot agree on a suitable discovery vendor, you can submit names to me and I will pick one for you.
… I would really encourage you all, instead of burning lots of hours with people reviewing, it seems to me this is the type of non-expedited case where we could all benefit from some new technology use.”
This stands stark contrast to Da Silva Moore, Global Aerospace & Kleen because the parties in EORHB, Inc., et al v. HOA Holdings, LLC, (Hooters Holding Co.) not only never agreed to use predictive coding technology, it appears that this was never discussed between the parties let alone with Judge Laster. In Fact, while reading the 68 page ruling, the concept of predictive Coding was not mentioned until after 66 pages of discussion on the meaning of footnotes, the meaning of “Provided further, however” and Romanettes (i, ii).
Beyond the content of the ruling, the Location & Judge involved are both of major note. Delaware has taken a proactive approach, adopting eDiscovery protocols earlier this year which the many companies headquartered in the small sate will have to abide by. And Judge Laster, in his 2 short years, has established him self as a strong and fair judicial activist and more than that an in the trenches judge looking for a way to manage the ever expanding data volumes hitting the parties in his courtroom.
This ruling represents the first prescriptive directive to use the spectrum of Technology Assisted Review processes that fall under the broad category of Predictive Coding. This represents a major step forward for proponents of technology Assisted review, and a cautionary tale to those not yet studying, evaluating and figuring out how to integrate new technology in their practice. Furthermore, if a as a practitioner you want to make an educated decision or advise a Judge as to why you have chosen a specific tool or process, you need to understand the vastly different tools on the market and myriad of ways which they can be applied to a document review.
In light of the recent prescriptive application of Technology Assisted review in EORHB, Inc., et al v. HOA Holdings, LLC, (Hooters Holding Co.), choosing the right methodology and application of Predictive coding is all the more important. However, with the flood of new entrants claiming to offer some variation of Predictive Coding & the confusion on what predictive coding actually means, it Is all the more important for practitioners to be well informed on the offerings of various tools, the spectrum of methods to apply the technology and the ways in which the intersection of man and machine impact application to Predictive coding.
(Stay tuned for more in Part Two)
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