The Federal Circuit Tries to Change the Tune to the E-Discovery Dance

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1 The Federal Circuit Tries to Change the Tune to the E-Discovery Dance Daniel B. Garrie* Introduction This Article analyzes the recent model orders issued by various federal courts and how the individual courts have responded to emerging technologies. The Article begins with a discussion of the Federal Circuit s model order on e-discovery in patent cases (the Federal Order ) and compares it with the model order issued by the Eastern District of Texas (the Texas Order ). The Article then looks at the two main methodologies for e-discovery: keyword search and predictive coding. The Article follows this discussion with recent cases that have implemented predictive coding instead of keyword search. The author concludes that while the model orders are a step in the right direction to control exploding e-discovery costs, they represent only a first step in trying to solve the troubling aspects of e-discovery. It is hoped that this Article will encourage judges, litigants, and other interested parties to continue trying to solve some of the still troubling aspects of e-discovery. A. Federal Circuit Review of Key Provisions The Federal Order is the Federal Circuit s response to the rapid growth of e-discovery and the related costs. The Federal Order attempts to get both parties to engage in targeted e-discovery by placing presumptive limits on e-discovery. In this regard, the Federal Order has patterned itself after Federal Rule of Civil Procedure ( FRCP ) 30, which limits deposition practice by presumptively limiting each side to ten depositions of seven hours each.1 * Daniel B. Garrie, Esq. is a partner and general counsel at Law & Forensics ( in Seattle, WA with offices in the United States and abroad. Mr. Garrie works with large and small companies in complex forensic investigation, electronic discovery dispute resolution, and advising clients on e-discovery proceedings. Mr. Garrie has a B.A. and M.A. in computer science and is an e-discovery Neutral and Special Master with Alternative Resolution Centers ( He can be reached at daniel@lawandforensics.com. Mr. Garrie would like to thank Yoav Griver and Candice Lang for their assistance with this article. 1 E-Discovery Comm. Advisory Council for the U.S. Court of Appeals for the Fed. Circuit, An E-Discovery Model Order 3 (last visited Oct. 14, 2012) [hereinafter 348 The Federal Circuit Bar Journal Vol. 22, No. 2

2 Specifically, the Federal Order requires that the parties exchange the type of core documentation key to patent litigation before propounding requests.2 Even then, the Federal Order presumptively limits the number of custodians and search terms for all production requests, so production requests are focused on particular issues when discovery is appropriate.3 Where a party seeks more discovery, the requesting party bears the reasonable cost of that discovery.4 By shifting costs, the Federal Order seeks to ensure that a party carefully balances the cost and value of the additional discovery.5 The Federal Order also seeks to lower the cost of e-discovery by addressing the preproduction review of documents.6 To minimize preproduction review, the Federal Order expressly provides that the inadvertent production of attorney-client privileged or work-product documents during e-discovery may not be used in the pending case and does not constitute a waiver in the pending case, in any other federal or state proceeding, or for any other purpose.7 B. Eastern District of Texas Review of Key Provisions The Texas Order is in many ways similar to the Federal Order. Both orders dictate what initial disclosures the parties should exchange prior to requesting .8 Both orders limit the production of and metadata.9 Clearly modeled after the Federal Order, the Texas Order seeks to make e-discovery more efficient and less costly for all parties.10 The Texas Order, much like the Federal Order, is an attempt to engage parties early in targeted e- discovery through limitations on what is and is not Federal Order], available at Fed. R. Civ. P. 30(a)(2)(A)(i), (d)(1). 2 See Federal Order, supra note 1, add. 8. This includes documents concerning the patent, the accused product, the prior art, and the relevant finances. Id. 3 Id. add. 6 7, However, these limits may be modified by the parties or the court for good cause shown. Id. add Id. add Id. at Id. at 4. 7 Id. add See Federal Order, supra note 1, add. 8; see also E.D. Tex. Civ. R. app. P 7 [hereinafter Texas Order], available at 9 See Federal Order, supra note 1, add. 5 7; Texas Order, supra note 8, 4, See Redline/Strikeout of Appendix P 1 [hereinafter Model E-Discovery Patent Order With Commentary] (showing changes made to the Federal Order in the Eastern District of Texas s adoption of its own Model E-Discovery Patent Order), available at uscourts.gov/page1.shtml?location=rules (last visited Oct. 20, 2012).

3 Changing the Tune to the E-Discovery Dance 349 discoverable.11 These changes are particularly of note due to the patent-heavy docket at the Eastern District of Texas.12 Compared to the Federal Order, the Texas Order requires a larger amount of disclosure.13 The Texas Order references the local rules, the Rules of Practice for Patent Cases before the Eastern District of Texas (the P.R. ) found in Appendix M, for disclosures surrounding patent litigation.14 The Texas Order requires the parties to exchange core documentation around the asserted claims and infringement contentions as dictated by the P.R. This includes the individual claims for each patent; an accused instrumentality for each claim; a chart showing the location of each infringement; a discussion of the elements in question; priority dates; and documentation confirming any prior sales agreements, conception dates, and a copy of the file history.15 The Texas Order imposes a limit on the number of custodians and search terms for production requests.16 Parties may request up to eight custodians per producing party 17 and a total of ten search terms per custodian per party. 18 The parties may modify these limits, or if contentious, the court may increase or decrease the number of custodians depending on the size, complexity, and issues of the case.19 The Texas Order also states that any inadvertent production of privileged or work-product documents is not a waiver of the protection in the pending case, nor does it constitute a waiver for any purpose See id. at Yan Leychkis, Of Fire Ants and Claim Construction: An Empirical Study of the Meteoric Rise of the Eastern District of Texas as a Preeminent Forum for Patent Litigation, 9 Yale J.L. & Tech. 193, (2007). 13 Compare Texas Order, supra note 8, 7, with Federal Order, supra note 1, add E.D. Tex. Civ. R. app. M, available at 15 See id. 3-1 to -2. Parties opposing infringement claims must provide invalidity contentions and their accompanying documentation 45 days after they are served with the infringement contentions. See id. 3-3 to -4. This includes identity of prior art, chart of where prior art was found, and any grounds for indefiniteness. Id The accompanying documentation must also include source code, schematics, flow charts, and any other documentation showing aspects or elements, as well as a copy of prior art not found in the file history. Id Texas Order, supra note 8, Id Id Id Id The cost of any additional discovery sought by a party is not addressed at length, with the Texas Order stating that any narrowing search criteria for search terms will be considered when determining if cost shifting is necessary. See id The Federal Circuit Bar Journal Vol. 22, No. 2

4 I. Specific Issues Within the Federal Order The Federal Order is a good first step in addressing the major problems with e-discovery, namely its ever-increasing cost and complexity. However, the solutions raised by the Federal Order also raise some concerns, which are addressed below. A. The Federal Order Should Consider Requiring the Parties to Perform Sampling Before Limiting the Number of Search Terms and Custodians The Federal Order presumptively limits the number of custodians and search terms for all production requests to five terms and custodians per producing party for all such requests.21 The intent is to control the exorbitant costs of production by minimizing what parties can request.22 This presumptive limit presents a challenging paradigm because it is impossible for parties to be 100% accurate on terms and custodians.23 Consequently, the author suggests the following take place prior to the court or parties selecting terms or custodians: 1. Parties should group search terms into high, medium, and low value. 2. Parties should identify applicable time frames and custodians for each group of search terms. For example: High Group Dates: 02/2010 to 05/2011; 03/2005 to 04/2006 Custodians: D. Smith; M. Jane Terms: Apple, Democrat, Republican, Libertarian 3. The opposing party should then sample each of the custodians using the search terms and dates for the group Parties should re-order the terms and custodians based upon the sampling results. 21 Federal Order, supra note 1, add ; cf. Model E-Discovery Patent Order With Commentary, supra note 10, at 5 (stating that eight custodians and ten search terms were appropriate for most patent cases filed in [the Eastern District of Texas] ). 22 See Federal Order, supra note 1, at 2, add This is especially true when parties do not control the data. 24 See Model E-Discovery Patent Order With Commentary, supra note 10, at 5 (stating that a requirement to list specific potential custodians prior to production requests was made out of a recognition that limiting a party s opportunity for discovery can only be done fairly by ensuring the party has sufficient information to meaningfully use its limited opportunity ).Changing the Tune to the E-Discovery Dance 351

5 If the parties fail to mutually agree on a protocol, or if the terms the parties propose are inappropriate or indiscriminate in nature, the court should mandate the application of the Federal Order s strict number requirements. B. The Triggers for Cost Shifting Allow the Parties to Game the System and May Offer Disincentives to More Economical Alternatives The Federal Order relies on disproportionate costs to trigger cost shifting. The Federal Order also provides that discovery tactics that delay or prolong the process will be considered by the court in determining which party should bear the costs of the discovery process.25 In this regard, it is possible for counsel for the producing party to manipulate the discovery process to increase costs borne by the requesting party. Specifically, the costs of performing data collection or execution can sometimes be substantially less costly if done in-house, rather than if a third-party vendor collected and performed the search. For example, a large technology firm might have a proprietary document-tracking platform that runs on legacy hardware and an in-house information technology (IT) team that is familiar with and manages the system. In this case, it would be substantially more costly to retain a third-party vendor than to use the in-house IT department. Yet, that expense arguably could still be presented to the court and opposing counsel as a true cost in e-discovery, and be used to deter, narrow, or shift the costs of e- discovery. Indeed, the producing party may contend that using a third-party vendor is appropriate, because doing so will avoid any concern that in-house IT staff will inevitably skew the production results in favor of the producing party. The end result is that a party can, or at least can try to, intentionally trigger cost shifting as a tactic in litigation. Courts and litigants should be aware of this tactic, and raise the issue during the initial discovery conference mandated by FRCP 26. One solution is for the court to encourage parties to utilize their own IT departments to collect and produce documents, as long as the in-house IT department follows best practices in the collection and production phases. II. Specific Issues Within the Eastern District of Texas As the introduction to the Federal Order states, the Federal Order was intended to be a helpful starting point for district courts. 26 The Eastern District of Texas made significant revisions to the Federal Order. These 25 See Federal Order, supra note 1, add Federal Order, supra note 1, at The Federal Circuit Bar Journal Vol. 22, No. 2

6 changes adjust the nature in which production occurs and the permissible default scope of the initial discovery. A. The Texas Order s Requirement for Production in TIFF Format Can Create Unnecessary Expense for Litigants The Texas Order, unlike the Federal Order, enunciates six separate parameters for production absent an agreement of the parties.27 The first parameter is that each electronic document shall be produced in single-page Tagged Image File Format ( TIFF ) format. 28 This TIFF requirement can create unnecessary expense to the parties because it requires parties to convert all documents to TIFF format.29 This conversion process is both time-consuming and costly.30 The court should enforce the TIFF requirement where parties have many documents that are not of a common file format or documents that require the reviewing party to purchase proprietary viewing software to view the documents.31 The Texas Order does allow a party to request production of documents in native format, but only after that party has received the production in either TIFF or text-searchable format.32 Finally, the Texas Order does not require the producing party to make its production text searchable. Thus, the receiving party can potentially incur substantial additional reviewing costs, because the receiving party needs to OCR (run optical character recognition on) the TIFF files to make them searchable. This TIFF-production requirement can put individual inventors, or other similarly placed plaintiffs, at a financial disadvantage and force them into a settlement that might otherwise be against their best interests. Although forcing a party to settle is the extreme outcome of the TIFF requirement, 27 See Texas Order, supra note 8, Id. 5(A). 29 See id. In addition to requiring unnecessary expenses, the TIFF format deprives parties of the numerous benefits offered by PDFs. See LexisNexis, File Formats for Electronic Document Review: Why PDF Trumps TIFF 3 (Aug. 1, 2012) available at lexisnexis.com/applieddiscovery/lawlibrary/whitepapers/adi_pdftrumpstiff.pdf. 30 See Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 160 (3d Cir. 2012) (concluding that the scanning and reformatting conversion costs were approximately $30,000 of the more than $365,000 in electronic discovery charges). 31 See Jardin v. Datallegro, Inc., No. 08 CV 1462 IEG (WVG), 2011 WL , at *5, *7 8 (S.D. Cal. Oct. 12, 2011) (plaintiff argued that 28 U.S.C did not authorize the conversion of electronic documents from one format to another and that the defendants could have produced the electronic documents in their original format without conversion costs; the court disagreed, finding that converting the data to TIFF files was necessary because the data were in various digital formats that required special software to gain access). 32 Texas Order, supra note 8, 5(D).Changing the Tune to the E-Discovery Dance 353

7 the courts should not mandate parties to incur costs or fees that may end up skewing the scales of justice.33 Consequently, absent large quantities of unusual file formats, a viable solution would be to use TIFF as a last resort and allow parties to quickly respond to production requests by producing in native format or PDF (Portable Document Format). B. The Courts Should Consider Shifting the Burden of Showing Good Cause From the Requesting Party to the Producing Party Because Most Mobile Devices Are Reasonably Accessible The Texas Order s default standard for the discoverability of voic and mobile devices is to presume they are not reasonably accessible and need not be collected unless the requesting party can show good cause.34 The Texas Order, by eliminating all voic s, does not account for how many companies convert voic s to text and them to recipients, which might make them discoverable.35 The Texas Order s exclusion of mobile devices fails to recognize that these devices operate as more than just phones (e.g., notepad, task lists, document editing) and are used widely in the workplace.36 A great deal of business records are generated by individuals on mobile devices, and the Texas Order s wholesale exclusion of mobile devices, absent a showing of good cause, puts parties at a stark disadvantage.37 With the explosive use of mobile devices, the Texas Order should consider tweaking the language to shift the burden to the producing party in order to establish that the mobile device is not reasonably accessible. 33 The term fees in 28 U.S.C.A. 1915(a)(1) refers to filing fees, docketing fees, ordinary fees, and charges of officers of the court, such as the clerk of court and the marshal but not to witness fees and expenses. 8 Federal Procedure 20:389 (Lawyers ed. 2005) (footnotes omitted). 34 Texas Order, supra note 8, 5(F). 35 See id The PDA is largely considered obsolete with the widespread usage of smartphones. See generally Andrew Smith & Faithe Wempen, CompTIA Strata Study Guide 140 (2011), available at ersonal%20digital%20assistant%22%20obsolete&pg=pa140#v=onepage&q=%22person al%20digital%20assistant%22%20obsolete&f=false. 37 Compare Texas Order, supra note 8, 5(F), with E.D. Tex. Civ. R. app. M 3-1 to -2 (showing that, while mobile devices are excluded, there are still requisite disclosure procedures under patent infringement claims).354 The Federal Circuit Bar Journal Vol. 22, No. 2

8 C. The Courts Should Clarify How to Handle GPS-Enabled Camera Phones and GPS- Enabled Cameras The Texas Order is ambiguous as to whether a party has to preserve or collect data from a GPS (global positioning system)-enabled camera phone or GPS camera within the discovery order. Under the Texas Order, if the camera or camera phone memory shows proof of prior art, it is discoverable under P.R. 3-1 and 3-2, prior to evaluating the media or mobile data.38 However, it is also possible that a GPSenabled camera phone or camera may be considered a mobile device and require a showing of good cause for production. This issue suggests that the court may need to evaluate how the Texas Order addresses the production of data generated by new technologies, such as GPS-enabled cameras. III. Issues Existing in Both the Federal Order and the Texas Order A. The Federal Order and Texas Order Default Standard That Metadata Is Not to Be Produced Absent a Showing of Good Cause Ignores the Critical Value Metadata Provides When Issues Exist Around Authenticity or Authorship A global area of concern with the Federal Order and Texas Order is their default standard of no metadata (i.e., data about data ) absent a showing of good cause.39 In a segment of patent-related disputes that focus on the date of filing, on priority, or on who is the creator of a patent, metadata is likely to be the critical element that provides crucial information regarding such key points as dates, times, authorship, and other related elements.40 It is an uphill effort for counsel to establish good cause around metadata because, after the initial discovery conference, litigants still may not have enough information to determine specifically what metadata they need in order to make a showing of good cause. One solution is for the court to maintain a lenient standard for good cause and allow relevant facts to emerge early in the case to save time and money for litigants. 38 See Texas Order, supra note 8, 5(F) (detailing that GPS devices are not covered under the Texas Order while certain disclosures are still required in patent infringement cases); see also E.D. Tex. Civ. R. app. M 3-3 to -4 (detailing when a defendant must produce prior art information). 39 Compare Federal Order, supra note 1, add. 5, with Texas Order, supra note 8, See Deborah Brown, Electronic Discovery Overview in Dispute Resolution and e- Discovery 9, 21, 21 & n.15 (Thomson Reuters 2011).Changing the Tune to the E-Discovery Dance 355

9 B. The Federal Order and Texas Order Should Require Parties to Define the Technology Systems Storing in Order to Narrowly Tailor Production Requests The Federal Order and Texas Order attempt to force the parties to hold off on production until after initial disclosures regarding the patents, the prior art, and relevant financial information.41 However, to encourage focused and reasonable production, it is respectfully suggested that the Orders also require the parties to define their respective technology systems involved with . This information is critical to allowing the parties to draft requests that are reasonable and narrowly tailored, as required by the Orders.42 The parties should be required to identify and disclose their respective technology systems involved with so that such issues may be identified before requests are issued. For example, a party might craft a request for that is narrowly tailored and appears reasonable, but that request still could be unreasonable if the party seeks that is five years old and is stored only on disk backup in Germany. In this example, the cost of production, given the medium and location, makes an apparently narrow and reasonable request unreasonable in practice, and may require an even more refined request. One possible solution is for the Orders to be amended to require the parties to exchange information about their IT systems at the earliest stage of the litigation, enabling both sides to effectively organize their forthcoming search requests Compare Federal Order, supra note 1, add. 8, with Texas Order, supra note 8, See Federal Order, supra note 1, add. 6 ( To obtain parties must propound specific production requests. ); see also id. 7 ( production requests shall only be propounded for specific issues, rather than general discovery of a product or business. ). 43 See, e.g., McGrath v. United States, 103 Fed. Cl. 658, 659 (2012) (the court considered a proposed discovery order that contained some of, but not all, the provisions from the Federal Order; among other things, the parties were eventually ordered to cooperate to identify the proper custodians, proper search terms, and proper timeframe before producing , and were encouraged to use narrowing search criteria (e.g., and, but not, w/x ) to limit production). Un-indexed is also known as the single-pass method of search. Gregory L. Fordham, Using Keyword Search Terms in E-Discovery and How They Relate to Issues of Responsiveness, Privilege, Evidence Standards and Rube Goldberg, Richmond J.L. & Tech, Spring 2009, at 1, 8, available at The Federal Circuit Bar Journal Vol. 22, No. 2

10 IV. The Importance of Search Under the Federal and Texas Model Orders Both the Federal and Texas Model Order address the topic of keyword searching, which is discussed above.44 This section provides the bench and the bar with an overview of search technologies so they can better evaluate the appropriate search technology, given a particular case. A. Keyword Search Until recently, the solution to combing through endless gigabytes of data has been a process of deduping,45 de-nisting,46 threading s,47 and then using a variety of keyword search techniques to sniff out the pertinent documents.48 Keyword search methodologies have come a long way in the last several years, 49 from basic searching within software programs such as 44 See Federal Order, supra note 1, at 3; Fed. R. Civ. P. 30(a)(2)(A)(i), (d)(1); see also Texas Order, supra note 8, An explanation of the process follows: De-Duplication ( De-Duping ) is the process of comparing electronic records based on their characteristics and removing or marking duplicate records within the data set. The definition of duplicate records should be agreed upon, i.e., whether an exact copy from a different location (such as a different mailbox, server tapes, etc.) is considered to be a duplicate. De-duplication can be selective, depending on the agreed-upon criteria. The Sedona Conference, The Sedona Conference Glossary: E-Discovery & Digital Information Management 11 (2005). 46 Remov[al] of any known system and program files... us[ing] a database of hash values to identify these innocuous files provided by NIST (National Institute of Science and Technology), which contains more than 34 million plus hash values for operating system and application files[,] is called de-nisting. Sharon D. Nelson & John W. Simek, Stop the Bleeding: Cost Containment for E-Discovery, Apr. 2009, 52 Res Gestae, at 12, See Rachel Adams et. al., Protecting Privilege in A Global Environment, ACC Docket, June 2009, at 30, See, e.g., Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, (D. Md. 2008). 49 See William A. Gross Constr. Assoc., Inc. v Am. Mfgs. Mut. Ins. Co., 256 F.R.D. 134, (S.D.N.Y. 2009) (with Magistrate Judge Peck beginning his opinion by stating: This Opinion should serve as a wake-up call to the Bar in this District about the need for careful thought, quality control, testing, and cooperation with opposing counsel in designing search terms or keywords to be used to produce s or other electronically stored information ( ESI ) [... ] Selection of the appropriate search and information retrieval technique requires careful advance planning by persons qualified to design effective search methodology. The implementation of the methodology selected should be tested for quality assurance; and the party selecting the methodology must be prepared to explain the rationale for Changing the Tune to the E-Discovery Dance 357

11 Microsoft Outlook to complex forensic searching software.50 Keyword searching generally takes one of two approaches: indexed or un-indexed searching.51 Indexed searching crawls through the data and creates an index that it then used to perform keyword searches against.52 Indexed searching is better suited to sampling, as the index provides the searcher with iterative capability, albeit at the expense of a longer setup time.53 The un-indexed search provides initial results more quickly, but at the expense of speedy iterations.54 Indexed and un-indexed keyword searching can be configured to incorporate Boolean connectors, proximity locators, fuzzy logic, and stemming: Boolean connectors such as AND, OR, and NOT reduce the number of false positives. Proximity locators look for terms within or not within a certain distance from each other.55 Fuzzy logic compensates for varied spellings of search terms by inserting wild cards within the spelling.56 Stemming allows the use of wild cards to search by the word stem.57 For all the benefits of keyword searching, including familiarity and ease of learning the methodology, there are limitations to the technology. Often overlooked in keyword searching is the inability for the search engine to read non-textual information. Pictures containing words may be relevant but search technology can search only what it can read. Other unreadable files can include compressed files such as zip files, and compound files, such as with attachments. Encrypted or password-protected files also pose an issue for keyword search programs. Counsel should evaluate keyword search software to ensure that it has the means to identify this data prior to searching. the method chosen to the court, demonstrate that it is appropriate for the task, and show that it was properly implemented. (citing Victor Stanley, Inc., 250 F.R.D. at 260, 262)); see also Daniel B. Garrie & Edwin A. Machuca, E-Discovery Mediation & the Art of Keyword Search, 13 Cardozo J. Conflict Resol. 467, (2012). 50 See generally Fordham, supra note 43, at 8 9 (discussing the development of keyword search technology). 51 Id. at Id. at 8 (citing Curt Frankin, How Internet Search Engines Work, HowStuffWorks, (last visited Oct. 20, 2012)). 53 Id. 54 Id. 55 Id. 56 Id. 57 See id.358 The Federal Circuit Bar Journal Vol. 22, No. 2

12 B. Overview of Predictive Coding While the Federal and Texas Orders do not specify a specific search mechanism, they both focus on the number of terms, which effectively requires the parties to use keyword searching to perform discovery. However, parties involved in document-intensive discovery issues should consider requesting the court to adjust the order to allow for the use of predictive coding software in lieu of keyword search. Predictive coding (also known as technology or computer assisted review) is a manner of searching that uses software to train a computer to comb through mountains of documents using a series of algorithms that track everything from punctuation usage, to familiar word strings, to topics of discussion in an .58 Predictive coding is a computerized process that uses sophisticated algorithms to enable the computer to determine relevance, based on interaction with (i.e., training by) a human reviewer. 59 The software is trained by a senior attorney or partner who reviews and codes a relatively small seed set of documents for responsiveness.60 The computer identifies properties of those documents that it [then] uses to code other documents until the system s predictions and the reviewer s coding sufficiently coincide, at which point the system has learned enough to make confident predictions for the remaining documents. 61 Typically, this allows a set of hundreds of thousands of documents (or more) to be coded for responsiveness and potential production even though only a few thousand have actually been examined by attorneys. In a common implementation of the technique, documents coded nonresponsive by the software typically the bulk of any document collection may never be examined again (other than in quality-control sampling), while those coded by the software as responsive may be reviewed by attorneys for a final responsiveness determination as well as for privilege See Andrew Peck, Search, Forward: Will Manual Document Review and Keyword Searches be Replaced by Computer- Assisted Coding?, L. Tech. News, Oct. 2011, at 25, 29. These algorithms can include more complex methods of keyword searching. See Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, Rich. J.L. Tech., Spring 2011, at 1, 4 ( A technologyassisted review process may involve, in whole or in part, the use of one or more approaches including, but not limited to, keyword search, Boolean search, conceptual search, clustering, machine learning, relevance ranking, and sampling. ), available at jolt.richmond.edu/v17i3/article11.pdf. 59 Peck, supra note 58, at See id. 61 Id. 62 See id.changing the Tune to the E-Discovery Dance 359

13 When using predictive coding, counsel should confirm that the software and protocol adequately address recall, precision, and accuracy. Counsel should understand the following concepts when evaluating predictive coding technology: Recall = Number of Documents Predicted to Be Responsive / Total Number of Actually Responsive Documents Precision = Number of Actually Responsive Documents / Number of Documents Predicted to Be Responsive Accuracy = (True Relevant Documents Retrieved + True Non-Relevant Documents Not Retrieved) / Total Documents Understanding how these concepts are implemented by the predictive software systems in use is critical. Thus it may be necessary to consult with experts to save time and the client s money See generally Daniel B. Garrie & Daniel K. Gelb, An Argument for Uniform E-Discovery Practice in Cross-Border Civil Litigation, 7 J. Bus. & Tech. L. 341, 344 (2012) (implying that in already expensive complex litigation, the development of a proposed model of electronic discovery in collaboration with experts, such as the Electronic Discovery Reference Model, will assist the legal profession). Experts should be engaged early to effectuate a strategy. People that are intimately familiar with these complex new technologies will avoid wasting valuable resources, energy, and efforts. See Garrie & Machuca, supra note 49, at 468. Where counsel intends to use predictive coding or similar technology, they should utilize experts who have a firm grasp of linguistics, statistics, natural language processing, and the law before deploying a litigation strategy that hinges on the use of predictive coding or similar technologies. Id. at While there are multiple ways to search data, predictive coding and similar technology is the better way if counsel can operate the technology properly, understand the legal issues, and the technology works as advertised. Where these factors are not in place, using such technology is ill-advised. While many agree that predictive coding offers distinct advantages to Boolean keyword searches, having the court mandate that a party use a particular method of technology is arguably overstepping its bounds. However, best practices dictate that the methods used are cost effective, efficient, and reliable and the courts have not been inclined to require the most advanced technology for every case at the expense of efficiency and costs. When deployed and used properly by counsel, these new technologies can reduce clients bills, increase efficiency, and avoid wasting valuable resources, energy, and efforts. In the end, the goal for counsel should be to develop an effective strategy that assures that e-discovery issues do not subsume the case or cost their clients millions of unnecessary dollars as it did in Da Silva introduced below. Transcript of Proceedings at 19 24, Kleen Prods., LLC v. Packaging Corp. of Am., No. 10 C 5711 (N.D. Ill. Feb. 21, 2012), available at (plaintiffs are asking the court to require the producing parties to use a particular form of e-discovery, specifically computer assisted review; they believe that defendants use of Boolean keyword searches is not reliable enough to meet the standard for reasonableness; defendants argue their method of keyword and phrases meets the requirements of best practices).360 The Federal Circuit Bar Journal Vol. 22, No. 2

14 Where the bench or the bar seeks to utilize predictive coding in lieu of keyword searching, under the Federal or Texas Orders, they should read closely Da Silva Moore v. Publicis Groupe SA ( Da Silva ) 64 and In re: Actos (Pioglitazone) Products Liability Litigation.65 Both of these cases offer protocols that allow the courts to maintain the spirit of efficiency and direction that is offered by the Federal and Texas Orders. Neither In re Actos nor Da Silva is a patent dispute; both cases provide examples of how courts are interpreting emerging trends in e-discovery across a range of matters. Courts should consider the model orders promulgated by the Federal Circuit, the Eastern District of Texas, and the Western District of Louisiana when drafting individual protocols. Where parties are comfortable with predictive coding or see the benefit when confronted with a large document set, the parties should approach the bench and seek a modified order using the above cases as a framework No. 11 Civ (ALC) (AJP), 2012 U.S. Dist. LEXIS 23350, at *25 26 (S.D.N.Y. Feb. 24, 2012), available at pdf (opinion and order by Magistrate Judge Peck approving of the use of predictive coding); see also Da Dilva Moore v. Publicis Groupe SA, No. 11 Civ (ALC) (AJP) (S.D.N.Y. Apr. 26, 2012), available at (U.S. District Judge Carter, Jr. adopting Judge Peck s opinion and order). 65 Case Management Order: Protocol Relating to the Production of Electronically Stored Information at 1, In re Actos (Pioglitazone) Products Liability Litigation, MDL No. 6:11- md-2299 (W.D. La. July 27, 2012), available at No- Promo&utm_content=button. 66 While some parameters are useful to guide the conversation between parties, each case is different and the parties should not make discovery adjudications at the expense of the issues in the case. Certain cases, such as patent cases, lend themselves more easily to iterative production with occurring later in the process. See Federal Order, supra note 1, at 3. Other cases that specifically hinge on the day-to-day communications between the parties require earlier in the discovery process and thus do not necessarily work whole cloth with the patent model orders. See generally In re: Actos (Pioglitazone) Prods. Liab. Litig., MDL No. 6:11-md-2299, at 5 6 (order managing production of electronically stored information). In the end, attorneys should not agree to the use of predictive coding or other search methodology or protocol without thinking it through. Attorneys should develop and evaluate their electronic discovery protocol and evaluate the role of discovery technologies prior to meeting with the opposing party. The protocol should cover multiple areas including defining the parameters both sides are willing to consider with regards to reliability, recall, and new technology. This protocol will assist the attorneys in ensuring that they know and can express what is acceptable to them prior to any agreement.changing the Tune to the E-Discovery Dance 361

15 Conclusion The Federal Circuit s Model Order is deemed a starting point by its authors, and the Eastern District of Texas took that starting point and clarified many sections with the release of the Texas Order. While some issues were solved, the addition of more parameters inevitably prompted more questions. Courts and counsel should utilize these Orders to begin a dialogue around e-discovery in patent disputes, but they should also consider the potential pitfalls that both Orders present. Indeed, courts are beginning to address the discrepancies with the Federal Order and the Texas Order. In a recent case, the Court of Federal Claims issued a discovery order that relied on both the Federal Order and the Texas Order, with additional commentary to aid both parties in setting discovery demands.67 Of interest in the modified order in Arrivalstar,68 the court recognized the costly ramifications of mandating a specific format such as TIFF and allowed the parties to specify the production formation. This active engagement by the bench is critical to ensure efficiency and fairness.69 Further, since the implementation of these Orders, the courts have been willing, within reason, to allow parties to produce their own mutually agreeable protocols.70 As Da Silva shows, any new technology is warily embraced by the courts. In the future, the courts will have to make specific e-discovery rulings to react to technology that continues to blur the distinctions between documents, ESI (electronically stored information), voic , and . This case law will add clarity and nuance to these orders to further demarcate strategy from the underlying issues. 67 Arrivalstar S.A. v. United States, No C, 2012 WL , at *1 2, *3 n.1 (Fed. Cl. Aug. 20, 2012) (explaining good cause for production of metadata as questions exist concerning the authenticity or authorship of ). 68 Arrivalstar S.A. v. United States, No C, 2012 WL (Fed. Cl. Aug. 20, 2012). 69 See DCG Sys., Inc. v. Checkpoint Techs., LLC, No. C PSG, 2011 WL , at *2 (N.D. Cal. Nov. 2, 2011) (stating that the Federal Order is just a model and only through experimentation can the court address what has to date been a largely unchecked problem ). 70 See, e.g., McGrath v. United States, 103 Fed. Cl. 658, 658 (2012).

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