Tuesday, March 6, 2012

Peck and Choose

Hello Everyone and welcome to my new blog. My name is Brandon and I work for an eDiscovery service provider, i.e. a vendor. This blog is something that I will be contributing to outside of my role of employee and will reflect my personal opinions on various eDiscovery issues. So, I hope that this post and others in the future will, at a minimum, give you something to think about. Enjoy.

For my first post, I am writing about Magistrate Judge Peck's recent decision in the Moniqe Da Silva Moore v. Publicis Groupe case. This is the decision now made famous for Judge Peck's comments about predictive coding, and while those comments are important, and even groundbreaking, I am writing about the opinion for another reason or reasons: the numerous other eDiscovery issues that Judge Peck mentioned, but failed to discuss, and the potential consequences of those issues.

In the opinion, Judge Peck glosses over three other major eDiscovery issues that I feel deserve to be fleshed out, including:

1. Discovery and Data Collection in the EU is Not Guaranteed - Plaintiffs sought data that resided in France and Judge Peck, without discussion, ruled that data would not be included in the first phases of discovery because the data "likely would be covered by the French privacy blocking laws[.]" What is interesting is that the quote suggests Judge Peck may abstain from requiring this data be included in Discovery because of the French laws. Most Federal courts in most cases will "ignore" foreign privacy laws, essentially telling litigants that they are under the jurisdiction of the US Courts and US discovery rules will apply, so the litigants will have to figure out how to obtain the data or face the consequences of failing to do so. Although he did not definitively rule on the matter for future phases of discovery, this raises the question: Will this start a new trend, where Judge Peck (and potentially other Judges in the future) defer to foreign privacy laws and their impact on discoverable data?

2.FRCP Rule 26(g)(1)(A) Does Not Apply to Discovery Responses - Rule 26(g)(1)(A) of course states that a party must sign every disclosure, stating that it is "complete and correct as of the time it is made." Judge Peck states that this clause does not apply to discovery responses, but rather to initial disclosures. Judge Peck instructs that Rule 26(g)(1)(B) applies to discovery responses, and it enunciates proportionality principle rather than a completeness standard. Despite the fact that it is impossible to ensure completeness in discovery responses, litigants have traditionally asserted and required the "complete and correct as of time it is made" "guarantee" in conjunction with productions. Will Judge Peck's analysis start to erode the use and mandate of this "guarantee?"

3. The Decision to Embrace Computer-Assisted Review in This Case Was Easy - The parties in Da Silva Moore agreed to use computer-assisted review and Judge Peck simply agreed to allow them to do so. Judge Peck points out that the tougher question is that raised by Klein Prods. LLC v. Packaging Corp. of Am., where plaintiff's have asked the court to order defendant's to use computer-assisted review to respond to plaintiff's document requests. How Magistrate Judge Nan Nolan (who by the way is a Chair for the Seventh Circuit Electronic Discovery Pilot Program) rules on that issue may have far greater impact than Judge Peck's decision. Stay tuned.

While the above issues do not have the groundbreaking caché that computer-assisted review currently does, they are none-the-less relevant and important, and may likewise have a large impact on the eDiscovery landscape moving forward. I for one, hope that they get the attention they deserve in this case and others moving forward.

Below is a link to Judge Peck's decision as well as a link to the Seventh Circuit Electronic Discovery Pilot Program Home Page.

Judge Peck's Da Silva Moore Opinion: http://falcondiscovery.com/wp-content/uploads/2012/02/dasilvamoore-2-24-12-opinion.pdf

Seventh Circuit Electronic Discovery Pilot Program Home Page: http://www.discoverypilot.com/

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