Document Review

The normally tepid e-discovery world felt a little extra heat of competition yesterday. Recommind, one of the larger e-discovery vendors, announced Wednesday that it was issued a patent on predictive coding (which Gabe Acevedo, writing in these pages, named the Big Legal Technology Buzzword of 2011).

In a nutshell, predictive coding is a relatively new technology that allows large chunks of document review to be automated, a.k.a. done mostly by computers, with less need for human management.

Some of Recommind’s competitors were not happy about the news. See how they responded (grumpily), and check out what Recommind’s General Counsel had to say about what this means for everyone who uses e-discovery products….

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I recently heard a panel of judges speak about e-discovery issues. Their opinions on several subjects varied, but on one subject they agreed unanimously: Clawback provisions under Federal Rule of Evidence 502 are valuable tools in most significant litigation, but they remain rarely used.

This piqued my interest, so I asked several in-house litigators (not necessarily at the place where I work) whether they routinely seek FRE 502 clawback provisions in their cases. The in-house lawyers do not. And I asked whether outside counsel routinely recommend seeking those provisions. Not surprisingly (because the in-house folks aren’t using them), outside counsel do not.

The judges think clawback provisions are a good idea; in most situations, it strikes me that the judges are right. So what are FRE 502 clawback provisions, and why are inside and outside counsel routinely missing this trick?

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If you read a lot of e-discovery articles — and I know y’all do — you know that judges are quickly losing any patience for attorneys who don’t have their act together during e-discovery (or even regular old discovery).

I know that nothing about the process is simple or easy. I know e-discovery is expensive and time-consuming and involves complex computer programs that most people don’t understand. But seriously, everyone needs to hurry up and figure this stuff out.

Otherwise you might end up like the attorneys for the city of Washington, D.C., who got benchslapped so hard on Monday that they won’t be able to see straight for a week.

Read on to learn about what Chief Judge Royce Lamberth (D.D.C.) described as a discovery abuse “so extreme as to be literally unheard of”….

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ALL YOUR DOCS ARE BELONG TO US.

Litigators at large law firms spend an inordinate (and depressing) amount of time on discovery disputes. They bombard poor magistrate judges with motions to compel. They bicker over deposition timing and location. They compile massive privilege logs. They file letter briefs with the court, explaining their entitlement to certain documents that opposing counsel is withholding, without justification.

Partners who work on such matters often say to their associates, “Find me a case in which a judge sanctioned a party for failure to comply with discovery obligations — preferably a case in which the non-compliance is exactly what opposing counsel is doing here, and ideally featuring soaring rhetoric about the importance of following discovery rules.” The associate spends several hours on Westlaw or Lexis, then returns empty-handed; there was nothing quite on-point. There was certainly no soaring rhetoric.

This shouldn’t be surprising. Do you think successful lawyers give up the practice of law in order to keep dealing with discovery-related headaches, for a fraction of what they earned in the private sector? Of course not. Federal district judges prefer to write published opinions about Sexy Constitutional Issues, leaving their magistrates to oversee the discovery playpen. In the rare discovery-related cases that do go up on appeal, federal circuit judges affirm as quickly and summarily as possible, so they can get back to the fun stuff. [FN1]

If you’re a Biglaw litigator searching for a published opinion addressing discovery issues, well, today is your lucky day. Check out this great opinion, just handed down — not by a mere magistrate or district judge, but by the U.S. Court of Appeals for the Tenth Circuit….

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In 1995, Betty Dukes took a job at a Wal-Mart near San Francisco, working as a cashier and greeter for $5 an hour. A “greeter” represents the face of the company as consumers walk through the door. Little did Dukes and Wal-Mart know that Dukes would ultimately become a face of Wal-Mart nationally, under much different circumstances. 

Today, the U.S. Supreme Court will hear oral arguments in Wal-Mart v. Dukes. Dukes is now the lead plantiff in a gender bias suit that may become the largest class action in American history, with attorneys for Dukes seeking to represent a class of possibly 1.6 million women. SCOTUS will be determining if the plaintiff cases against Wal-Mart are sufficiently related for them to be certified as a class. 

So what does this have to do with legal technology, which is what I cover for ATL? Everything. And no matter what the court decides, the legal and technological ramifications of this case do not bode well for the retail giant… 

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DNA is pretty, oh so pretty.

* The Supreme Court opens the door, but just a crack, to prisoners seeking access to DNA evidence. [SCOTUSblog]

* The legal job market is getting better, right? Right? [Vault]

* Hall, J., dissenting — from the grave. [How Appealing]

* Harvard Law School is always ready for its close-up: first The Paper Chase, then Legally Blonde, and now The Five Hundred. [Deadline.com]

* Are computers better than attorneys at document review? Maybe — but they’re definitely more attractive. [Constitutional Daily]

* Protip for litigators: “Pull Your Pants Up Before Going to Court.” [Gothamist]

* Elsewhere in fashion news, a Seventh Circuit panel (Posner, J.) holds that it’s constitutionally protected to wear a t-shirt that says “Be Happy Not Gay” to your high school. But it’s still really… gay. [WSJ Law Blog]

* Litigation to advance a worthy cause (although it seems odd, in a “cart before the horse” sort of way, to file the press releases before the actual lawsuit). [The Snitch / SF Weekly]

* Blawg Review #301: it’s all about communication. [Not Guilty via Blawg Review]

* Congratulations to Professor Brian Fitzpatrick of Vanderbilt Law on receiving the 2011 Paul M. Bator Award (won previously by a long list of blawg celebrities, including M. Todd Henderson, Orin Kerr, Jonathan Adler, Eugene Volokh, and Randy Barnett). [Federalist Society]

From “concept searching” to “cloud computing,” every year there are new buzz words and catch phrases that enter into the lexicon of legal technology. Of course, when you are dealing with technology of any sort, you should expect to update jargon regularly (such as from 3G to 4G to 5G, whatever that means).

2011 is shaping up to be no different. This year’s “it” phrase is already emerging in the industry. It evolved from the buzz words of yesteryear, and if this new phraseology is worth its salt, these new advances could drastically change how law is practiced for years to come.

So what is legal technology’s newest terminology?

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Daniel de Juan, a sales engineer from Mitratech, summed up perfectly what LegalTech was like for me this year: “Being at LegalTech is almost like being at a casino, in the sense that you lose all track of time.”

Two years ago, I found the conference to be pretty intimidating, and that was when the conference was much smaller due to the weak economy. Last year, LegalTech New York was much bigger, and I found it slightly overwhelming. This year, due to some bad planning on my part, I came home from LegalTech utterly exhausted.

It seems I wasn’t the only one who felt this way. After a quick search on the Internet, I have seen only a few things written up about the conference, so I’m guessing many people went through the same experience. (For example, I spoke with members of The Posse List on the first night, and they told me that they were gearing up to do 36 interviews during the two and a half day conference — so it must have been a whirlwind for them as well.)

That said, here are some musings from my adventure last week….

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I know lots of guys fantasize about boinking “barely legal” teenage girls. Not me, I like women: fully formed, adult women. There’s just something unseemly about older men salivating over girls who could have been in high school a year ago. Call me crazy, but it’s just more interesting as an adult to be intimate with other adults.

Similarly, I like my lawyers to actually practice law. There’s something unseemly about watching market forces turn law school graduates into glorified paralegals and secretaries. Call me a prude, but there’s just something gross about seeing young, nubile attorneys going around begging for document review positions. These people spent three years of their lives and six figures of their (or someone else’s) money to get law degrees; they should have something to show for their efforts.

But even if I don’t like to look, I can’t deny that this is happening. We are all living in a time that will be studied by future generations: a time when attorney career paths bifurcated, between traditional partnership-track associates and what I’ll call “barely legal” career paths….

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There are plenty of attorneys in the major city offices who are not putting in enough hours and would love to be doing doc review versus the threat of being asked to look for another job. Wake up to what is happening out there in the real world!

Ann Israel, in her advice column on NYLawyer.com (subscription), to a Yale Law School graduate and current federal law clerk seeking advice on how to get out of document review when she goes to a law firm after her clerkship (gavel bang: ABA Journal).

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