More cases are coming down across the nation dealing with eDiscovery review methods, and a common theme has been to order computer-assisted document review (aka “predictive coding”) to make document review more efficient. Sometimes, this is beneficial for plaintiffs, such as our discussion of the National Day Laborer Organization, where the court found the defendants’ proposed keyword searches to be inadequate. As our legal system catches up to the available cutting-edge technologies of the twenty-first century, one question to ask is which litigants have a right to choose the eDiscovery methods for review and production?
To understand the direction the courts are moving, it might be useful to consider traditional discovery productions, before electronically stored data (ESI) became the norm. Could a plaintiff tell a defendant how to go through, organize and produce their paperwork, maybe peek over the defendant’s shoulder as he or she highlighted the relevant documents for the defense production? Although that answer would be no, electronic discovery is more complex than regular document discovery. Plaintiffs need to have a say in the methodology used in the defendants ESI production.
In the 2012 Virginia case Global Aerospace, Inc., et al. v. Landow Aviation, L.P. d/b/a Dulles Jet Center, et al., (Case No. CL 61040), the Loudoun County Circuit court ruled that defendants may use predictive coding as the methodology before producing ESI. This was over the objection of the plaintiffs, although the court specifically noted that the order was entered without prejudice regarding the issue of completeness or the contents of production.
Could plaintiffs have done more regarding electronic data discovery to guard “the fox in the henhouse?” More on the Global Aerospace opinion and how plaintiffs can get an edge later this week. If you have any questions, give us a call at 888-313-4457 or visit our web page on plaintiff Programmatic Issue Coding.