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Years ago, humorous writer Fran Lebowitz was asked about criticism of a judge overseeing one of the highest profile murder trials of all time. The jurist was taking heat for what people viewed as a laid back or merely observant role in the courtroom, allegedly enthralled by the performances of the legendary trial lawyers in his midst. True or not (probably not) there it was. When asked for her take, Ms. Lebowitz said, "He didn't want to look like he was judging anyone. He didn't want to come off as judgmental. I mean, who is he to judge?"
But appearing to be judgmental certainly was not the case recently when it came to judging the value and validity of predictive coding and electronic discovery vendors. Hon. J. Travis Laster, Vice Chancellor, Delaware Chancery Court, took discovery by the horns in a complex matter before him and, seeing the parties' need to review massive volumes of data, told their attorneys to pick one of these "wonderful discovery superpowers" and use predictive coding. If this was not the way to go, he told the lawyers to brief him on why (EOHB, Inc. et al. v. HOL Holdings, LLC, CA No. 7409-VCL [Del. Ch. Oct. 15, 2012]).
Here is how Judge Laster put it from the bench during a hearing on the matter:
"This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding. I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go. I would like you all to talk about a single discovery provider that could be used to warehouse both sides' documents to be your single vendor. Pick one of these wonderful discovery super powers that is able to maintain the integrity of both side's documents and insure that no one can access the other side's information. If you cannot agree on a suitable discovery vendor, you can submit names to me and I will pick one for you.
"One thing I don't want to do-one of the nice things about most of these situations is once people get to the indemnification realm, particularly if you get the business guys involved, they have some interest in working out a number and moving on.
The problem is that these types of indemnification claims can generate a huge amount of documents. That's why I would really encourage you all, instead of burning lots of hours with people reviewing, it seems to me this is the type of non-expedited case where we could all benefit from some new technology use."
In their commentary on the decision, Michael C. Hefter and David A. Shargel of Bracewell & Giuliani wrote that this signals the "growing acceptance of predictive coding of electronically stored information." They called out the fact that the judge made the decision on his own initiative, without a motion from the parties, and that this appears to be the first time predictive coding was condoned by the Delaware Chancery Court, which is highly respected by courts in other jurisdictions.
Orrick e-discovery attorneys Wendy Butler Curtis and Jeffrey W. McKenna expressed concern about the court's action. "Sophisticated and unsophisticated litigants alike shudder at the thought of courts mandating specific discovery practices or selecting vendors. Whether on motion or sua sponte, such decisions by courts are contrary to the well-established principle that a responding party is best situated to evaluate the procedures, methodologies and technologies for collecting, searching and producing its own electronically stored information and fail to account for company investments in internal tools, preferred vendor relationships or company-specific and unique data requirements."
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