Plaintiff ESI Production Strategies are Necessary from the Beginning of the Case
The 2012 Virginia court opinion Global Aerospace, Inc., et al. v. Landow Aviation, L.P. d/b/a Dulles Jet Center, et al., (Case No. CL 61040) was no small discovery case. The physical amount of the ESI data was over 200 gigabytes (GB), or the equivalent of about two million pages if printed. The court in Global Aerospace looked at three main ways to cull an ESI collection:
- Linear review, or the use of human reviewers. Extremely time-consuming and expensive (estimated at over $2 million to review), and not particularly effective.
- Keyword searches. Notoriously unreliable; the court noted that studies show that keyword searches may miss about 80 percent of relevant documents.
- Predictive Coding, or employing probability formulas to place a value on words, their interrelationships, proximity and frequency to find the relevant documents to the issues of the case.
Given modern alternatives, it was clear that a traditional linear review process for this volume of ESI would not make sense. But if computer assisted document review or “predictive coding” is used, how can plaintiffs make sure that the methodologies used are fair and comprehensive as to culling out responsive documents? Do all the parties have the right to participate in document review methodologies and ESI protocols? A common problem for plaintiff electronic discovery review is that most do not trust the defendants to have total control.
The court ordered the defendants to use predictive coding for their ESI document review, and then give the defense production to the plaintiffs. Although predictive coding properly conducted is a cost-effective and accurate method of document review, plaintiffs would have been much better served by participating in the construct of that process.
The court noted the plaintiffs objected “for reasons that have not been fully articulated.” This might have been the problem. Plaintiffs need to have their own strategies for ESI production from the very beginning of the case. More on Global Aerospace and plaintiff electronic discovery strategy planning in our next blog, or give us a call at 888-313-4457.