Bexis attended the annual spring meeting last week. PLAC meetings are almost always good for at least one blog post. This is it.
In the high-tech morass that is ediscovery, parties have tried various ways to do something about the disparity between cost and benefit. An approach is to attempt to use new technology to fix – or at least ameliorate – the problems caused by the explosion in electronic information caused by existing technology.
One such proposed technological fix is called “predictive coding.” Googling that phrase yields far more technical information than we could possibly provide (or maybe even understand), so in the nutshell of a very small nut, predictive coding takes advantage of artificial intelligence software that enables a computer to learn from its mistakes and adjust its processes accordingly. The need for attorneys to review produced edocuments is a major aspect of excessive ediscovery cost.
Predictive coding can reduce that cost by using computers to extrapolate actual attorney review of a small subset (a “seed set”) of edocuments over the entire proposed production of documents. The attorneys review the seed set – then the computer does a similar set of documents based upon the attorney coding. The attorneys review that set and correct errors. The computer does another set, having incorporated the attorney’s revisions. That review process is repeated however many times, until everyone is satisfied the error rate (both false positive and false negative) is acceptable. The vendors claim predictive coding ultimately makes fewer mistakes than review by actual human attorneys. Take those financially interested claims with however many grains of salt you believe they deserve.
But until recently, no court anywhere had authorized the use of predictive coding in actual ediscovery. Now that’s changed. A presentation we heard at the PLAC spring meeting last week (by David Cohen of Reed Smith), mentioned four decisions in three cases where predictive coding had been judicially authorized as an ediscovery tool.
The oldest of them was decided less than three months ago. In Moore v. Publicis Groupe, ___ F. Supp.2d ___, 2012 WL 607412 (Mag. S.D.N.Y. Feb. 24, 2012), a magistrate judge declared “that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.” Id. at *1. In Moore the parties had initially “agreed” to use predictive coding, but disputes then (predictably?) arose, requiring judicial resolution. Perhaps not so coincidentally, the magistrate before whom that agreement was reached had personally written an article on the benefits of predictive coding, id. at *2, and lawyers sure pay attention when their judge starts quoting his/her own articles.Continue Reading Predictive Coding Gets A Chance
The First Circuit decided Bartlett v. v. Mutual Pharmaceutical Co., No. 10-2277, slip op. (1st Cir. May 2, 2012) today – suggesting that it is the worst court of appeals in the country for defendants in prescription pharmaceutical product cases. There are various grounds for disliking the opinion, but the preemption ruling is probably
We’ve learned of another win for removal before service in our local federal court, the Eastern District of Pennsylvania. In Boyer v. Wyeth Pharmaceuticals, Inc., C.A. No. 12-739, slip op. (E.D. Pa. April 25, 2011), the case was removed “before any defendant had been served.” Id. at 1. The plaintiff sued Pfizer, a non-Pennsylvania
Last year we posted a shameless plug for the annual DRI drug and device conference.
Here we go again. We were tipped off by J. Carter Thompson that there’s still time to sign up for this year’s meeting in New Orleans next week. Here’s a link that will direct you to a brochure and to
We feel like we post on Mensing at least once a week and we have our quickly growing scorecard to back us up. It is not that surprising really, considering the vast number of cases that were stayed awaiting the Supreme Court’s decision. Having sat on the cases for months, courts around the country are eager to move forward. So far, forward has mostly been in the direction of dismissals – an avenue down which we enjoy a nice long stroll. But, we appreciate that it’s getting to the point where you may be saying – we’ve heard this before – and asking – Don’t you have anything new? The answer today is – nope.
Not only is our post today on another post-Mensing decision. It is also about a case on which we previously blogged – Phelps v. Wyeth, Inc., slip op., No. 6:09-CV-06168-TC (D. Ore. Apr. 24, 2012). But, when a decision is good, we want to make sure you all know about it. And, unlike too much ice cream (stomach ache) or too much alcohol (hangover) or too much exercise (sprained muscles) – we don’t think you’ll be too worse for wear hearing about another good post-Mensing dismissal. But, just in case, we promise to keep it quick and simple.
When we last left Phelps, plaintiffs were trying to use discovery sanctions to get around preemption. When that didn’t work, plaintiffs filed objections to several post-Mensing decisions by the magistrate and last week, the district court judge upheld both the decision dismissing the brand defendants and the decision dismissing the generic defendants.Continue Reading More of the Same (But That’s A Good Thing)