Why deceit pays for some in electronic litigation proceedings

When it comes to technology assisted review, lawyers and litigation services professionals have a growing bank of precedent to work with and follow. Though the concept and industry is still relatively new, major cases over the past several years have revealed some solid best practices, as well as multiple indications of what is simply not ethically and legally acceptable.

Also known as predictive coding, this practice has become increasingly common in businesses across the world, and penetrates new industries almost every month. While preparation is key to prevent a major issue stemming from eDiscovery requests from a court, those businesses that use the services of a proven electronic litigation solutions provider are often the most successful when faced with such proceedings.

Lessons learned from February

JD Supra recently published a report from Sandra Burch that explained some of the finer points gleaned from the February 2012 Da Silva Moore v. Publicis Groupe & MLs Group case that involved the first ever approval to recognize technology assisted review as a legal method of uncovering data pertinent to a federal trial.  Burch explained that Magistrate Andrew Peck was overseeing the trial, and issues his opinion that led to the use of eDiscovery to find electronically stored information (ESI).

According to the author, this was also the beginning of the first large, public-facing event that involved questionable ethics on behalf of a judge regarding eDiscovery decisions. Judge Peck’s decision was notably odd, as both parties involved in the case, Da Silva Moore and Publicis Groupe, had already agreed to allow predictive coding after not being able to find close to two-thirds of the information necessary for the lawsuit.

Burch explained that both the plaintiff and defendant were more concerned about protocol involving the use of technology assisted review, and not whether they could use it or not. This led to a plaintiff request for the Magistrate Peck to recuse his presence from the case, as questions of his relationship with the defense and eDiscovery solutions provider involved made his statements bothersome.

This recusal was denied by Judge Peck, Burch noted, while Judge Andrew Carter stepped in an upheld Peck’s decision.

Where does the deceit end?

Unfortunately, as Law Technology News (LTN) reported, the case with Peck left little precedence to avoid such worrisome issues from happening again. According to the news provider, Peck’s 56-page opinion regarding the recusal and the case at large was where the case ended, though he was never brought up on any charges for potential bribery and kickback activities.

LTN further noted that while predictive coding was at the heart of the decision, the 200 pages worth of exhibits Da Silva, the plaintiff, provided as the request for Peck’s recusal revealed that the judge had a very clear support of technology assisted review, as well as who we was working with and the vendor involved. One of the firms he spoke for, LTN noted, was the same litigation firm that was involved in this landmark case.

Many wonder though, how a comment such as Peck’s to the defendant in the case, “”You must have thought you died and went to Heaven when this was referred to me,”” did not lead to a recusal, LTN added. The deceit and potential fraudulence certainly did not end with Peck, either, as the next judge to step in, as well as other attorneys, affirmed Peck’s decisions rather than starting anew.

While predictive coding and eDiscovery at large are certainly essential tools in today’s litigation proceedings, especially considering the wealth of data most businesses have, the rules and regulations regarding these decisions are still largely in need of refinement, and an ethics check.