Category Archives: Privilege

Another Court Formally Endorses the Use of Technology Assisted Review

Given the increasing prevalence of technology assisted review in e-discovery, it seems hard to believe that it was just 19 months ago that TAR received its first judicial endorsement. That endorsement came, of course, from U.S. Magistrate Judge Andrew J. Peck in his landmark ruling in Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012), adopted sub nom. Moore v. Publicis Groupe SA, No. 11 Civ. 1279 (ALC)(AJP), 2012 WL 1446534 (S.D.N.Y. Apr. 26, 2012), in which he stated, “This judicial opinion now recognizes that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.”

Other courts have since followed suit, and now there is another to add to the list: the U.S. Tax Court. Continue reading

TAR 2.0: Continuous Ranking – Is One Bite at the Apple Really Enough?

For all of its complexity, technology-assisted review (TAR) in its traditional form is easy to sum up:

  1. A lawyer (subject matter expert) sits down at a computer and looks at a subset of documents.
  2. For each, the lawyer records a thumbs-up or thumbs-down decision (tagging the document). The TAR algorithm watches carefully, learning during this training.
  3. When training is complete, we let the system rank and divide the full set of documents between (predicted) relevant and irrelevant.[1]
  4. We then review the relevant documents, ignoring the rest. Continue reading

Massachusetts Adopts New Civil Rules Governing E-Discovery


John Adams Courthouse in Boston, home to the Supreme Judicial Court.

My home base of Massachusetts has become the latest state to adopt rules governing the discovery of electronically stored information in civil cases. The new rules, which the Supreme Judicial Court adopted on Sept. 24 and which take effect on Jan. 1, 2014, borrow heavily from the 2006 amendments to the Federal Rules of Civil Procedure, from the Federal Rules of Evidence, and from the 2007 Uniform Rules Relating to the Discovery of Electronically Stored Information developed by the National Conference of Commissioners on Uniform State Laws.

The changes come as amendments to the Massachusetts Rules of Civil Procedure and are applicable to all trial courts in the state. The purpose of the new rules, according to the Reporter’s Notes, was to craft a process that would address Continue reading

Report: Predictive Coding Replaces Sanctions as the Big News in E-Discovery

For the last several years, year-end reports on e-discovery have highlighted sanctions as the lead headline. (For examples from this blog, see Report: Sanction Requests Rise But Awards Hold Steady for 2011 and E-Discovery Sanctions Reach an All-Time High, Survey Finds.) For 2012, however, a different story took the lead spot — the rise of predictive coding.

Such is the conclusion of the 2012 Year-End Electronic Discovery and Information Law Update published by the law firm Gibson Dunn. Continue reading

Trends and Best Practices in E-Discovery Privilege Review

Recent cases have presented several examples of the inadvertent production of privileged, “smoking gun” documents. In some of those cases, even with a clawback agreement in place, the court would not allow clawback. In others, even when clawback was allowed, the damage was done.

Below are the slides from a recent Catalyst Webinar, Trends and Best Practices in E-Discovery Privilege Review. (Follow that link to see and hear the entire webinar, with audio.) Presented by members of the Catalyst Search & Analytics Consulting Team, the webinar explores recent e-discovery trends and best practices regarding privileged Continue reading

Webinar: Trends and Best Practices in E-Discovery Privilege Review

You cannot unring a bell, as the saying goes, and nowhere in e-discovery is that more true than when privileged documents are inadvertently produced to an opposing party. Even if you have a clawback agreement and even if the court enforces that agreement (not a certainty), the damage may already be done.

On Thursday, June 28, at noon Eastern time, Catalyst will present a free webinar, Trends and Best Practices in E-Discovery Privilege Review, presented by three members of the Catalyst Search & Analytics Consulting team. John Hokkanen, director of Search and Analytics Consulting, and senior consultants Jim Eidelman and Ron Tienzo will explore recent e-discovery trends and best practices regarding privileged documents. Continue reading

Judge Peck Provides a Primer on Computer-Assisted Review

PrimerCoverMagistrate Judge Andrew J. Peck issued a landmark decision in Monique Da Silva Moore v. MSL Group, filed on Feb. 24, 2012. This much-blogged-about decision made headlines as being the first judicial opinion to approve the process of “predictive coding,” which is one of the many terms people use to describe computer-assisted coding.

Well, Judge Peck did just that. As he hinted during his presentations at LegalTech, this was the first time a court had the opportunity to consider the propriety of computer-assisted coding. Without hesitation, Judge Peck ushered us into the next generation of e-discovery review—people assisted by a friendly robot. That set the e-discovery blogosphere buzzing, as Bob Ambrogi pointed out in an earlier post. Continue reading

Check for Privilege Before Turning Over Your Database: The Lesson in Thorncreek Apartments

Before you give opposing counsel the keys to your production database, run at least one check on the privilege field to see if any of your documents are marked “privileged.” That is the lesson a federal judge taught a hapless defense counsel in Thorncreek Apartments III v. Village of Park Forest, 2011 U.S. Dist. Lexis 88281 (N.D. Ill August 9,2011). If you don’t, you may be deemed to waive the privilege. I hate when that happens!

“What’s going on here?” you might ask. Can anyone be that sloppy? “Maybe,” I say in response. At least that’s what it seemed like here. Counsel literally made a production database available for more than seven months Continue reading

In E-Discovery, Even Google Needs Help with Search: Oracle Case is Lesson in the Complexity of Privilege Search

Lest anyone underestimate the complexity of privilege searching in e-discovery, consider the recent case in which none other than search giant Google got tripped up. Although the company’s privilege searches screened out an email labeled “Attorney Work Product,” the searches failed to catch nine drafts of the same email, autosaved by the author’s email program.

Worse yet, the email was a true “smoking gun.” In fact, the email was so potentially inculpatory that the Continue reading

‘Mt. Hawley’ Affirmed and Claim Dismissed: District Judge Again Puts His Stamp of Approval on Troubling Rulings

For over a year, we have been writing about a West Virginia decision (and its progeny) that we believe went too far in making new e-discovery law. The original decision, issued May 18, 2010, was styled Mt. Hawley Insurance Co. v. Felman Production. You can read my original post at: Bad Facts Make Bad Law: ‘Mt. Hawley’ A Step Backward for Rule 502(b).

In that decision, Magistrate Judge Mary E. Stanley held that Felman had waived attorney-client privilege by inadvertently producing a smoking-gun email to counsel suggesting that it might be helpful to their insurance claim for business interruption to backdate several orders from clients. If the orders had come in while the machinery in question was under repair, that might provide support for their $38 million dollar insurance claim. You have to love their chutzpa Continue reading