up where there’s an incentive to ask for the most expensive or
intensive or time-consuming technology just because it exists,
and because you can, and because you don’t have to pay for it,”
Latham & Watkins Partner Adrienne Eason Wheatley says.
The 3rd Circuit noted in its decision that conflicts remain
among the circuits on how to deal with the contentious issue.
It’s likely that other courts will issue differing opinions on the
matter as new cases arise.
“Race Tires is important, but it’s just one aspect of a very
broad, deep and continuing discussion on this issue,” Wheatley
says. “There are multiple stakeholders grappling with this question, so we’re going to see more on this as time goes by.”
Kleen Products, LLC, et al. v. Packaging
Corp. of America, et al.
Seen by many as a case that’s similar to Da Silva Moore, Kleen,
which also deals with the hot topic of technology-assisted
review, has stolen much of Da Silva Moore’s recent thunder as
the most-talked-about e-discovery case currently in court.
Whereas Da Silva Moore has tentatively set a general framework for the propriety of predictive coding, elucidating when it’s
appropriate for a particular case and helping to define what is
appropriate use of the technology, Kleen is expected to play an
important role for how, in certain circumstances, e-discovery
can and cannot be conducted.
The plaintiffs in the case, which is currently pending in the
Federal District Court for the Northern District of Illinois, are
a putative class comprising product manufacturers, packaging
companies and food distributors. The plaintiffs allege that the
defendants, another group largely comprising packaging companies, are in violation of the Sherman Antitrust Act.
What’s currently at issue in the case, which had evidentiary
hearings in late March before Magistrate Judge Nan Nolan, is
whether the defendants should be required to redo their document production. The defendants have already spent thousands
of hours reviewing documents and produced more than a million documents using keyword search tools.
Technical Talk Although the parties initially agreed to use
keyword search at the outset, they didn’t agree to a protocol
regarding how they would conduct those searches. And now,
the plaintiffs are asking Judge Nolan to force the defendants to
use a completely different form of technology-assisted review—
predictive coding, a software tool that uses complex algorithms
based on human input to automatically tag documents.
When it comes to e-discovery technology, the most-buzzed-about topic
currently is predictive coding. a form
of technology-assisted review that uses
complex algorithms based on human
input to automatically tag documents,
predictive coding is still somewhat new
to the scene, and only a small percentage of lawyers—both in-house and in
law firms—are actively using it. and
while many in-house attorneys are hesitant to be early adopters, their interest
the arguments in favor of predictive coding say it expedites the review
process, enabling more accurate results
at a tremendous cost savings. skeptics,
however, point to the technology really
being only as strong as the user, who
has to repeatedly train the system to
return those more-accurate results.
Jay leib, chief strategy officer at
e-discovery vendor kCura, says that
given the potential for massive cost savings, legal departments are willing to dip
their toes in the water—or at least push
their outside counsel to do so on their
“they hire the law firms to manage
their legal risk, and computer-assisted
review fits into that as a business solution,” he says.
but despite legal departments’ ability to compel their outside counsel to
first deal with the potential pitfalls of
predictive coding and learn from those
tribulations, many are still hesitant to
bring the technology in-house.
“one mainstay client of ours said, ‘i
don’t want to be the guinea pig,’” says
Covington & burling partner edward
rippey. “that’s definitely a barome-
ter of the current state of affairs. it’s a
common sentiment, but what they do
with that sentiment varies company by
that sentiment is present to
some degree in transCanada’s legal
“We’ve had the solution for about a
year now,” says Jeff nadalo, a land and
litigation attorney at the energy infra-
structure company. “We haven’t had a
case yet that has pushed the envelope,
but as we’ve used it more, we’re getting
more comfortable with the possibility of
employing it in a large e-discovery case.
thankfully for us, though, we haven’t
had to take that step yet.”
in the end, money talks, and as the
case law and comfort with predictive
coding evolves, so too will in-house law-
yers’ appetites for the tool.