"One Ring to Rule Them All?" E-Discovery Search Methodology in Patent Litigation in Light of Recent Model Orders and Case Law
Two Model Rules from the E-discovery-Kings under the sky:
Five or eight custodians for Tech-Lords in their courts of stone;
The vast production of metadata, perhaps doomed to die;
Five or ten search terms for the Dark Lord's e-mail on his dark throne
In the Land of Litigants where the patent Trolls lie.
But is there One Ring to rule them all? One Ring to find them?
One Ring to search them all and then produce and bind them,
In the Land of Litigants where patent cases lie?
"It's a dangerous business, Frodo, going out of your door . . .You step into the Road, and if you don't keep your feet, there is no knowing where you might be swept off to.”
-- J.R.R. Tolkien, Lord of the Rings: The Fellowship of the Ring
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Somewhere along the road of litigation and technology, e-discovery's All-Seeing Eye grew bigger than its stomach. Overall, only .0074% of documents requested and produced in litigation (less than 1 in 10,000) wind up on trial exhibit lists. Still less are actually used. For e-mail, hotly demanded due to the hopes of finding a smoking gun in informal and hastily-sent communications, the proportion is even lower. This trend is especially concerning in intellectual property litigation -- patent cases in particular.
To combat this trend, two sets of courts -- let's call them the Fellowship of the E-Discovery Kings -- recently set on journeys to narrow the range of the All-Seeing Eye in patent litigation, issuing similar and helpful Model Orders for e-discovery to curtail mass and unnecessary production. But whether there is really One Ring to Rule Them All when it comes to search methodologies -- one workable solution -- may not be as clear as the E-Discovery Kings propose.
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es a search for relevant electronically stored information ("ESI"), there is no industry-based definition or measure of a “legally defensible” search. Reminiscent of Supreme Court Justice Potter Stewart's famous quip, some think we know a good search “when we see it,” but the simple and embarrassing truth is that we do not have an operative definition of search acceptability. The lack of any such industry standard for searching and finding ESI in a case wreaks havoc in the field and leaves it to courts to determine, on a case by case basis, whether a particular search passes muster. Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.d. 251 (D. Md. 2008).
Helpful, effective guidance on evaluating and selecting e-discovery vendors is rare. For one, the constant development of technology makes it difficult to keep up with the latest vendor offerings. Not to mention that more vendors pop up on almost a daily basis. Court rulings also play a role in changing the e-discovery landscape and therefore the tools needed to keep up with it..png){kind=avatar}
In a highly-anticipated showdown, the IBM-created computer “Watson” prevailed against two human champions on the television game show "Jeopardy!". In a world where machines have already replaced humans in manufacturing and human labor tasks, this sneak peak into a future where humans might also be replaced by machines in intellectual pursuits, was somewhat daunting.
electronic document production will immediately splurge on champagne and party hats. And who can blame him? But here's the question: would this message be captured in the net of responsive material, or would it slip through the cracks? The answer may depend less on the skill of document retrieval experts, and more on how your company (or client's) voicemail system works..jpg)
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