eDJ Contributor: Michael Fluhr
Posts by Michael Fluhr
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- May 8th
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Partial Recall: Why Lawyers Can’t Have (And Really Don’t Need) All Relevant Documents – Part II
This is the continuation of my article from last week entitled “Partial Recall: Why Lawyers Can’t Have (And Really Don’t Need) All Relevant Documents” I find it exceptional the Court found it reasonable and proportional for Biomet to follow eDiscovery procedures predicted to result in the production of only 40% of the relevant documents (40% recall)—a number that might make some attorneys and judges cringe. I don’t know of any other case that has so clearly approved of such a low recall value. And I think the Court was right to do so. For one thing, studies show that even using the best information retrieval technologies at extraordinary expense, recall in many cases doesn’t reach much higher than 70%. Perfection or near-perfection are not even options. Additionally, historical eDiscovery practices have likely resulted in significantly lower recall values. As many [...]
posted at 9:00am on May 8th
- May 2nd
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Partial Recall: Why Lawyers Can’t Have (And Really Don’t Need) All Relevant Documents – Part I
I can’t recall how many times I’ve received demands from opposing counsel for “all” relevant documents in my client’s possession. Indeed, many court opinions support such an entitlement. Yet countless studies (Blair and Maron, TREC, etc.) show that even the best information retrieval technologies and practices fall well short of perfection. Courts have begun to recognize the impossibility of perfection in eDiscovery, though many still seem reluctant to depart too far from an expectation of perfection. But in a freshly released opinion arising in the context of a multi-district litigation, Judge Robert L. Miller, Jr. of the Northern District of Indiana ventures further than other courts, recognizing that parties may satisfy their discovery obligations under the Federal Rules even with productions that fall well short of total recall. Below, I summarize the opinion and explore the implications of imperfection in [...]
posted at 9:00am on May 2nd
- January 21st
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Making eDiscovery Purchasing Decisions: In-House vs. Vendor Part II
In my last article, I covered the costs and potential savings associated with bringing eDiscovery software in house. This article will continue my analysis on whether or not bringing software in house is the best choice for most firms. How Do I Use It? Another consideration when deciding whether to purchase eDiscovery software is expertise. Using eDiscovery software isn’t like using iTunes or Microsoft Word. It often requires significant expertise, both to use and to maintain. Just by way of example, it requires knowledge of database administration just to maintain the software (which generally runs off of a relational database). It requires an understanding of how ESI processing and analytics work, to ensure that data is processed properly (e.g., the appropriate metadata extracted, the appropriate indices created, the data appropriately deduplicated, etc.). It requires an understanding of how to create [...]
posted at 9:00am on Jan 21st
- October 24th
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Making eDiscovery Purchasing Decisions: In-House vs. Vendor Part I
“Can’t We Just Do This Ourselves?” Increasingly, law firms and clients are asking whether they can avoid hiring an eDiscovery vendor by bringing eDiscovery software in-house. It’s a question worth asking. Many firms and clients have invested intelligently in eDiscovery technology and have seen a return in efficiency, profits, and client satisfaction. Others, however, have plunked down hundreds of thousands of dollars for technology that they don’t use. In this two part series, I’ll discuss the potential benefits and drawbacks of bringing eDiscovery software in-house. What Exactly Am I Purchasing? As a preliminary matter, let’s start with some basics. Specifically, what kind of eDiscovery technology and software are we talking about? Usually, the technology and software that law firms or clients bring in-house, at a minimum, provide for processing, review, and production of ESI. These tools may also provide what [...]
posted at 9:00am on Oct 24th
- September 20th
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Thompson v. Autoliv – Another Court Accepts Discoverability of Social Media
Facebook. It’s for posting party pictures, catching up with old friends, and letting the world know what you ate for lunch (Safeway sushi for me, but you won’t find that information on my page). For many of us, our Facebook profile holds some pretty personal tidbits, which we share only with those thousand or so friends whom we chose to allow a virtual peep into our quasi-private lives. We’d rather not see these tidbits in Entry #47 of a District of Nevada PACER docket (though until it institutes photo tagging, D. Nev.’s PACER user base will continue to dwindle). Nevertheless, many courts have given parties license to explore the Facebook pages of opposing parties. Recently, we saw yet another example of this in Thompson v. Autoliv ASP, Inc., No. 09-cv-1375, 2012 WL 2342928 (D. Nev. June 20, 2012). The case [...]
posted at 9:00am on Sep 20th
