The plaintiffs contend that predictive coding is better than keyword searching because it doesn’t require users to know all of the
pertinent keywords in order to identify all of the relevant documents. If the human input provided is accurate, the plaintiffs claim
that computers can use these algorithms to automate the identification of potentially relevant documents faster and more accurately
than humans using the more traditional key word document review
methodologies, which would provide them with added assurances
that the defendants’ document productions were thorough.
So the big question now is whether Judge Nolan will allow
the plaintiffs’ request.
“I’m not sure that a court is ready to render a decision that
basically will force a party to completely redo their entire document production in the absence of a more robust justification
for it,” Faccone says.
However, experts do expect that Judge Nolan’s decision will
provide important guidance about what is permissible after parties agree to a specific discovery protocol upfront, as well as
whether one party should have the ability to change that protocol after a tremendous investment of time and under what
circumstances the protocol change would be warranted should
it be considered an appropriate resolution.
Playing Nicely Another issue at play in Kleen is the same
question of proportionality that was brought up in Race Tires.
Some attorneys are hesitant to engage in a proportional
approach to discovery because they fear that it doesn’t necessarily rise to the equivalent of zealous advocacy.
“The proportionality question is really the heart of the elec-
tronic discovery debate, or should be the heart of the electronic
discovery debate,” Faccone says. “We need to recognize that we
can be good lawyers for our clients by engaging in, and under-
standing, the principles of cooperation and proportionality.”
Kramer Levin Naftalis & Frankel Special Counsel and
E-Discovery Counsel Brendan Schulman agrees, noting
that recently there has been a decided push for cooperation
between parties to mitigate potential discovery disputes before
“The trend has been to ask attorneys to do some careful
thinking and consultation with clients and also, to the extent
that it’s possible, to confer with adversaries and engage in a
cooperative approach,” he says.
It appears this trend is set to continue. There are a number of cases currently queued up in courts behind Da Silva
Moore and Kleen dealing with similar issues that have yet to
“They’re not necessarily going to come out the same way as
Da Silva Moore or Kleen will, but clearly this is a trend that’s
only going to pick up steam,” says Craig Carpenter, vice president, marketing, at technology vendor Recommind.
DEEP RELATIONSHIPS. FORWARD THINKING. AND NOT JUST ONE LAWYER, A TEAM. SO YOU CAN STAY AHEAD OF WHATEVER COMES AT YOU.
AUTHORIZED BY JOHN B. FRISCH, CHAIRMAN