The plaintiffs’ objections to the defendant’s use of predictive coding to cull their enormous ESI production was noted to be “not fully articulated” 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). Our last blog noted that this might have been a real problem. If plaintiffs cannot offer very specific objections to proposed discovery methodologies, what are the chances the court will agree?
The court made two points when it allowed predictive coding methodology to be used in-house by defendants, also reserving the issue of discovery completeness:
- After producing the culled production, defendants were to implement a statistically valid sampling program to evaluate the documents deemed “irrelevant.” The plaintiffs were allowed to sample the seed set of irrelevant documents.
- The plaintiffs were allowed a second chance to keyword search the documents deemed irrelevant.
Although the court seemed confident that these additional protections would be sufficient, from the plaintiff’s perspective, it does little. The fox is still guarding the henhouse, and no one is watching the fox. The court itself admitted keyword searches to be inadequate—but it finds keyword searches adequate for a second pass for plaintiffs?
Plaintiffs’ counsel whose cases involve massive Defense ESI productions must have strategies and preparedness regarding search methodologies almost by the time the case is filed. If predictive coding is anticipated, they must insist on participating in the defense side planning process. This would include having a competent linguist, statistician and predictive coding expert to validate the proposed process or assist in designing acceptable alternatives. With predictive coding properly conducted, plaintiffs can expect the “richness” of defense-side document relevance to increase from below 25% to better than 70%. Although many corporate defendants and mega-defense firms use in-house IT and support staff to effectuate electronic data discovery, plaintiffs firms may not have such a wealth of resources.
When plaintiffs have well-planned strategies and the backing of expert teams of legal and IT specialists, they have the extra edge to level the playing field against powerful defendants. Call us at 888-313-4457 for a free consultation.