This is the first time a court has directly authorized the use of predictive coding in the production of ESI and the motion was granted over the objections of the opposing party.
April 25, 2012 – Philadelphia, PA: On Monday, April 23, 2012, Judge James H. Chamblin of the 20th Judicial Circuit of Virginia's Loudoun Circuit Court entered a protective order in Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al, allowing three defendants, over objection, to use predictive coding as their selected method for processing and producing documents from more than 250 gigabytes of electronically stored information, which is a collection that exceeds 2 million documents. Judge Chamblin expressly reserved the right of any receiving party to challenge the continued use of predictive coding should the production prove to be inaccurate or incomplete.
Judge Chamblin's decision expands upon Magistrate Judge Andrew Peck's recognition in Da Silva Moore v. Publicis Groupe, 2012 U.S. Dist. LEXIS 23350 (S.D.N.Y. 2012) (Peck, J.) of the propriety of predictive coding for ESI production and is the first to directly authorize the use of predictive coding over the objections of an opposing party. The decision recognizes that predictive coding may be a viable method of culling large volumes of ESI.
The case before Judge Chamblin stems from a collapse of a commercial structure, which damaged hundreds of millions of dollars in personal property. The defendants are represented by Schnader Harrison Segal and Lewis LLP and Baxter, Baker, Sidle, Conn & Jones, PA of Baltimore, MD. Schnader’s e-Discovery Practice Group, led by Thomas C. Gricks III, initially directed the collection and preservation of the ESI. When agreement on production methodology could not be reached, Schnader filed a motion for a protective order to allow the firm to use predictive coding to cull the collection.
“The critical point of the order is that the Court allowed a party to choose predictive coding as its preferred method of responding to a request for production of ESI. His decision was an express recognition of the evolution of document review to deal with ever-increasing volumes of data,” said Gricks.
Schnader has been successful in using predictive coding to save time and money on a first-pass review, which in the immediate case will be significant. Schnader was prepared to present Timothy Opsitnick, Esq. of JurInnov Ltd., Dr. Herbert Roitblat of OrcaTec, LLC, and Karl Schienman Esq. of Review Less, LLC as experts in support of the motion.
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