Orange hot pants and predictive coding – a match made in Delaware
Tucked away on page 66 of a 68-page transcript from a hearing on a motion for summary judgment in arguably the most important business court in the country, the message was clear: predictive coding is going mainstream. EORHB, Inc. v. HOA Holdings, or “The Hooters Case” as it will be more easily recognized, provided an unlikely vehicle for a case to rock the eDiscovery world. After pages of discussion surrounding indemnity clauses, releases, and how different subsections of the underlying contract operate, Vice Chancellor J. Travis Laster jumped into the deep waters of predictive coding. In a bold bit of jurisprudence, Judge Laster advised the parties,
Why don’t you all talk about a scheduling order for the litigation on the counterclaims. This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding. I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go.
A few lines later – after talking about picking one of “these wonderful discovery super powers” to warehouse documents – he continued,
. . . the problem is that these types of indemnification claims can generate a huge amount of documents. That’s why I would really encourage you all, instead of burning lots of hours with people reviewing, it seems to me this is the type of non-expedited case where we could all benefit from some new technology use. (emphasis added)
And with those simple lines of august counsel, although unsought by the parties, began a firestorm of controversy in the eDiscovery blogosphere and twitterverse. It is worth noting, however, that Judge Laster is no stranger to the limelight and this is but the most recent of his bold actions from the bench that have had people talking.
Most of the commentary I read seemed to actually decry the Chancellor’s ruling as officious and even more often invoked the loaded phrase “judicial activism” into the debate (one notable exception is found here). But this phrase has no place in the context of this case, as there is nothing activist about a judge applying Rule 1 in the manner and spirit in which the Rules were crafted. Indeed, respected industry fixtures jumped on the Chancellor and decried this activism as a harbinger of things to come. Undoubtedly, the argument was eloquently stated; however, their weakness is not in their word.
After all, many of the vendors and eDiscovery pundits who will benefit from the widespread adoption of predictive coding were actually blogging and tweeting as if this decision was the worst news they heard this year. Bluntly stated, it came across as insincere. It was as if they had won the lottery but were going to complain about having to pay taxes on their winnings. Why not just recognize the decision for what it was: a victory for predictive coding in the on-going battle for it to achieve mainstream acceptance. Why not applaud Chancellor Laster for having the mettle to intervene in the management of the case before problems arise? The irony is that many litigators who were questioning the judge’s decision have also spoken publically about the need for increased involvement from the bench when it comes to case management and discovery dispute resolution. Moreover, the analysis around judicial activism overlooks what the decision really means for the parties.
In my estimation, the parties actually will benefit from this judicial decree to use predictive coding, because it will force them to actually evaluate the review process now. And they should evaluate as thoroughly as time (and client resources) allow. The Chancellor astutely allowed them a safety valve of a show cause hearing in order to get out of using predictive coding. I fully expect that if the parties get together and conclude the case is not appropriate for judicial review, hopefully only after evaluating the data, and properly brief the issue then the Chancellor will allow them out of the prior order.
Judge Laster should be applauded for showing a willingness to embrace new technologies, rather than merely react to them. Practitioners, in his court and around the country, would do well to take notice of the subtle undertone of the order too. Your clients expect innovation to drive greater efficiencies, reduce costs, etc. If you are going to wait until the courts require it, then it will be too late. Instead, look at the Judge’s order as a nudge toward the future. We are living in a time where models for delivering legal services will continue to change rapidly, and this type of support from the bench is a good sign for lawyers who are forced to do more with less for their clients. So lets just be honest, and not turn this case into a lightning rod against judicial activism. And for those of us in the predictive coding business – lets be honest, and admit we are ecstatic to have this type of ruling finally.