by Constantine Pappas on November 12, 2014
In September, we highlighted a US Tax Court case in which Judge Ronald L. Buch allowed a party to use computer-assisted review on archived emails, despite IRS objections to the technology’s proven effectiveness.
Earlier this year, Magistrate Judge Joe B. Brown issued an order allowing the Plaintiff, Bridgestone Americas, Inc., to use Relativity Assisted Review to identify and produce relevant documents to Defendant, International Business Machines (IBM).
In Bridgestone Americas, Inc. v. International Business Machines Corp. (M.D. Tennessee) Bridgestone sought an award of $600 million, alleging that IBM had fraudulently mismanaged the redesign of Bridgestone’s IT systems.
The parties agreed to select their review set by using search terms provided by IBM, which narrowed the population to approximately 2 million documents. Later, Bridgestone requested to use Assisted Review with the assistance of their vendor, TransPerfect, to locate and produce relevant documents.
IBM opposed the use of predictive coding on several grounds, alleging that:
• There is insufficient data to support the reliability of predictive coding—similar to the IRS objections voiced in September’s case.
• Computer-assisted review does not constitute “attorney review” pursuant to their discovery agreement with Bridgestone.
• Using predictive coding after the set has been culled with keywords is an improper use of the technology, and would result in an addition burden to be placed on IBM, specifically arising out expected lengthy protocol negotiations and the necessity to review Bridgestone’s seed documents.
At some point it appears that IBM abandoned the first two arguments, instead focusing exclusively on the third. After some debate, Magistrate Judge Brown rejected IBM’s assertions partially on proportionality grounds, stating:
In this case, we are talking about millions of documents to be reviewed with costs likewise in the millions. There is no single, simple, correct solution possible under these circumstances.
The Magistrate Judge will permit Plaintiff to use predictive coding on the documents that they have presently identified, based on the search terms Defendant provided.
In addition to proportionality, one can’t help but wonder if the court was also alluding to some flawed thinking on IBM’s part by pointing out that they themselves supplied the keywords used for the culling. After all, if Bridgestone had performed a manual review of all documents, IBM’s objection would arguably never have been voiced.
In addition, the Court seems to recognize the fact that Bridgestone was at least, according to some, trying to alter what it promised to do in the original case management order (CMO). As such, Judge Brown places a strong burden of cooperation on Bridgestone’s part:
The Magistrate Judge believes that he is, to some extent, allowing Plaintiff to switch horses in midstream. Consequently, openness and transparency in what Plaintiff is doing will be of critical importance. Plaintiff has advised that they will provide the seed documents they are initially using to set up predictive coding. The Magistrate Judge expects full openness in this matter.
While these two cases have given computer-assisted review additional support in the courtroom, they also bolster the transparency issue—one of the primary hot button topics for predictive coding this year. Many believe that the giving of seed documents creates a double-standard which holds the technology to a higher standard than traditional methods.
In the Bridgestone case, it’s difficult to say whether this specific aspect of the order will have any lasting future impact, as it seems the Plaintiff offered to supply the seed documents as a pre-emptive (and strategically wise) act of cooperation.
Also on the subject of cooperation, Judge Brown might well have been silently using DaSilva Moore as a cautionary example of situations where protracted arguments over the use of predictive coding technology have negated any possible benefits it might have otherwise provided. In an attempt to avoid such an outcome, he expresses his expectation that the parties will work together:
The Magistrate Judge expects the parties to communicate, through their attorneys and experts and companies doing the work, on a frequent and open basis. …[T]he parties are directed to confer as needed and, if they reach a sticking point, not allow it to go too far before scheduling a telephone conference or request an in–court hearing with the Magistrate Judge about the issue. What the Magistrate Judge is particularly concerned about is that the case not get tied up in unnecessary wrangling.
It’s exciting to see both of these cases garnering the effectiveness of computer-assisted review from a judicial perspective—particularly the Bridgestone case, which specifically highlighted Relativity Assisted Review. As we move into 2015, we’re excited to see the industry continually evolve toward a broader acceptance of this technology—and all the benefits it can yield in real-world cases.
As always, if you have any questions about how to build a proper Assisted Review workflow, don’t hesitate to contact us at email@example.com