Migrated from eDJGroupInc.com. Author: Mikki Tomlinson. Published: 2012-02-10 08:49:40Format, images and links may no longer function correctly. As I had hoped, An Interview with The Honorable Andrew J. Peck – Part One spawned an interesting conversation among industry experts.  As promised in Part One, this blog will address the PC-TAR paradigm shift and education, but I will first address the conversation from Part One because I think it is an important one.

One of the comments to Part One, which was submitted by an in-house litigation support manager, states: “Frankly, I’m surprised it is taking the legal community so long to catch up… It is well beyond time legal practitioners recognize efficient and effective work practices and strive to put them in place as they work in the best interests of their clients.”  I could not agree more!

It has been stated over and over in discussions around PC-TAR, that it is imperative to have a well-defined workflow that includes solid processes for purposes of defensibility (e.g., sampling, documentation).  In Part One I pointed out that we had these same conversations around acceptable, defensible practices when using key terms and all human review.  Yet, there are still a number of practitioners that are not making use of solid, defensible practices.  For example, I continue to see attorneys blindly selecting key terms and proceed directly to process, review, and production with no sampling and minimal documentation along the way.  My question, then, remains whether the discussions surrounding PC-TAR will prompt practitioners to employ better practices no matter what method of collection/search/review is.  Or, will we maintain the status quo:  those that understand the need for and importance of solid processes and project management, and those that don’t?

Another comment to Part One states: “I see movement in this area mostly with corporations choosing to use technology to lower their costs and control their limited resources. I think law firms will move in this area but it will be slowly (until a case says it’s OK) or until their clients push them to do so.”  What do you think? Where will we be one year from now?  More than half of eDJ’s PC-TAR survey respondents will have experimented with PC-TAR before 2012 is over.

Now…on to Part Two topics.

EducationJudge Peck stated more than once during the LTNY Man vs. Machine:  The Promise/Challenge of Predictive Coding & Other Disruptive Technologies session that you need to “know your judge”.  In our lunch discussion/interview after the session, we talked about this at some length.  My particular interest in this discussion with Judge Peck is about how to best educate the judiciary.

In my years as E-Discovery Advisor working for in-house counsel, this was a pain point.  While we went through painstaking exercises to educate judges before whom we appeared, it seemed the effort was sometimes futile.  Perhaps we failed at the case level (no matter how good the argument or position)  – a completely different discussion – but, my point here is as to the general knowledge of eDiscovery issues on the bench.  Judge Peck has been voted by LTN as the “Champion of Technology”.  But what about other judges?  By way of example, in my past life in the corporate trenches there was a judge in one federal jurisdiction that issued an “Order Waiving Rule 26(f) Requirements” in every case we had before him.  What can we, as eDiscovery professionals, do to support the cause?

I shared this and many other “in the trenches” stories with Judge Peck.  I was hoping he would give me some sort of magic formula that would solve the struggles litigants have when standing before the bench trying to help a judge understand the complexities of eDiscovery.  Silly, I know – there isn’t one.  Instead, Judge Peck offered good, sound advice. He reiterated the importance of (1) knowing your judge, (2) bringing your geek to court, and (3) presenting your eDiscovery issues clearly, thoroughly and with appropriate information/documentation to support your argument.

The Paradigm Shift.  For years law firms have been using rooms full of associates and/or contract attorneys to handle review of large document collections.  PC-TAR puts this duty into the hands of the attorney(s) most knowledgeable about the case.  Oftentimes, this is a partner level attorney.

In my experience, it can be difficult to convince someone that has been practicing for 20 plus years to change their way to doing business.  I wonder, however, if the advantages that PC-TAR brings to the table will be the impetus for making this transition more quickly than others we have seen in the past.  There are many benefits to PC-TAR (e.g., reduction in cost, accelerated review).  However, in my opinion the major motivator for senior level attorneys is that they learn the story that the electronic evidence tells earlier in the case than with a traditional review done by associates and contract attorneys.

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