Judicial, Industry, Legal, Media Perspectives on Where Legal Technology is Taking Litigation and How It Affects You
By Howard Reissner
This year at the LegalTech New York conference Planet Data hosted a panel with the Hon. Michael Baylson, U.S. District Judge and an eDiscovery analyst, an attorney and a journalist.
The session filled up early and eager attendees lined the walls to hear about the most hotly debated current issues in e-discovery. The hypothetical scenario allowed the panel and Judge Baylson to explore “attorney –client privilege” and “attorney work product protection”, cost shifting, TAR protocols, vendor selection, and the extent of the role of the judiciary in the discovery aspects of a case.
By design, the hypothetical situation was intended to generate debate between counsel on the appropriateness of their actions during the outset of discovery in a complex case involving multiple parties, numerous potential custodians, and the efficacy and completeness of data collection, processing and searching, review and production.
Over the past year a number of actual cases (including of course, Judge Baylson’s “LA Fitness” decision) have addressed many of these newly emerging issues. Some of the most pressing current concerns have evolved around the efforts to implement TAR on a wider basis. The complexities, strengths and limitations of these technologies have led to procedural challenges to their utilization. The hypo created a situation where the defendants implemented a TAR process and produced far more documents than the plaintiffs. Nonetheless, the plaintiff’s counsel inquired as to how the “seed sets” were developed, and how the methodology for review and production was developed. Along similar lines, the defense counsel demanded to know how the plaintiff identified and collected their documents in light of the relatively small number of documents produced.
“With his decisions in Rhoads Industries and LA Fitness having helped shape the current state of the law of electronic discovery, it was great having Judge Baylson with us live on the panel,” said attorney David Horrigan, e-discovery and information governance analyst at 451 Research, who served as moderator and hypothetical defense counsel on the panel. “Adding David Brown’s perspective from The National Law Journal and Ann Kershaw’s experience as a practicing e-discovery attorney helped us cover all the issues—with Judge Baylson keeping us all in line from the bench.”
As in the real world, these issues were then put before the judge, who was reluctant to be drawn into the underbelly of discovery work-flow and technology. It appeared evident from this exercise that the judge favors litigants resolving these issues between themselves before they reach his courthouse. Our scenario highlighted the real concern that in these very early days of TAR adoption, it is important to slow down a bit and /P>