Document Review, State Judges, Technology

Virginia Judge Orders Predictive Coding, Despite Plaintiff Objections. Is This the Start of a New Era?

Despite all the brouhaha surrounding Magistrate Judge Andrew Peck‘s recent predictive coding ruling, the gates on the cutting-edge electronic discovery technology appear to be opening. Not the flood gates, but the kind of gates big enough to let deer into your back yard.

We have another case this week, from a small county court in Virginia, where a judge has ordered predictive coding despite the plaintiff’s objections. Keep reading to hear about the latest technology-assisted review in litigation.

UPDATE (4:00PM 4/26/12): We’ve obtained the plaintiffs’ motion, as well as the defense’s response. You can see them below…

The Law Technology News explains Monday’s order:

Loudoun County Circuit Judge James Chamblin wrote, “Having heard argument with regard to the Motion of Landow Aviation … it is hereby ordered Defendants shall be allowed to proceed with the use of predictive coding for purposes of processing and production of electronically stored information.” Chamblin acknowledged that the receiving party will still have the opportunity to question “the completeness of the contents of the production or the ongoing use of predictive coding.” The court order allowed 60 days for processing, and another 60 days for production.

Chamblin’s order was in response to a Landow motion requesting either that predictive technology be allowed or that Global Aviation pay any additional costs associated with traditional review.

The case in question is Global Aerospace Inc. v. Landow Aviation LP. You can view this week’s ruling here [PDF]. (As a side note, the plaintiffs are represented by Jones Day. The defense’s lawyers are with Schnader Harrison Segal & Lewis and Baxter, Baker, Sidle, Conn & Jones.)

The tipster who alerted us to the story added some additional color, including the interesting point that this is a long way from the S.D.N.Y.:

Apparently it was fully briefed and Oral Arguments were 40 minutes. It was all the buzz in the DC E Discovery Committee meeting this morning, and is making the e-Disco blogosphere…

Transcripts and briefs are still hard to come by. Loudun County Courts are not known for these kind of cutting edge rulings.

UPDATE (4:00PM 4/26/12): Here is the objection, and here is the defense response (both are PDFs.) This is the beginning of the objection:

At its core, the production of documents is not a complicated concept. Talk to the client. Locate the files that might reasonably contain responsive documents. Look at the documents. Select the ones that are responsive and not privileged. Produce them.

The Landow Defendants wish to produce their emails and other electronic documents without undertaking any of these steps. Instead of having human beings look at and select documents, the Landow Defendants want a computer program to make the selections for them.

As exciting as this case is (yeah! e-discovery party!), you might want to hold off on the backflips for a while. Proponents of technology-assisted review have not yet knocked down the Berlin wall of keyword search:

Trial lawyer and computer forensics/e-discovery special master Craig Ball, who is a Law Technology News columnist and Editorial Advisory Board member, said the case is one to watch. However, he observed that its county-level basis and the ability for the plaintiff to challenge the results makes it less than groundbreaking.

“No party needs permission of a judge to use predictive coding or canary yellow paper or pink pencils,” Ball said, in Austin, Texas. “It’s obviously something we can watch and see how well it works out … the problem with an order like this is the devil is in the details,” such as the lack of discussion about quality control, he added.

We know how attached attorneys can be to their pink pencils, and God forbid a magistrate judge try to take them away.

Said another way, Tim Opsitnick, senior partner and general counsel of JurInnov, one of the technology vendors handling the case, says the order might open the door a little wider for litigants interested in using predictive coding in the future:

“I think it’s always hard to have a first case that goes out there and sets a tone. But I don’t think the court’s ruling here is anything unusual … litigants should have the right to choose the [review] method,” he said. As for the wider implication of Global Aerospace on the use of predictive coding, he said, “I think it opens that opportunity up for perhaps other litigants to a bit braver about this issue.”

Keyword searching, are your days numbered? Probably not. But you better hold onto your seats, because it looks like the world is inevitably going to change.

Global Aerospace Inc. v. Landow Aviation LP: Order Approving Predictive Coding [Loudoun County Circuit Court]
Judge Orders Predictive Coding Over Plaintiff Objection [Law Technology News]
Motion For Protective Order Regarding Electronic Document Review And “predictive Coding”
Memorandum In Support Of Motion For Protective Order Approving The Use Of Predictive Coding

(hidden for your protection)

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