{"id":35,"date":"2015-12-11T08:09:10","date_gmt":"2015-12-11T16:09:10","guid":{"rendered":"http:\/\/www.founditdata.com\/blog\/?p=35"},"modified":"2015-12-11T08:12:45","modified_gmt":"2015-12-11T16:12:45","slug":"judge-david-campbell-predictive-coding-rarely-proposed-rarely-used","status":"publish","type":"post","link":"https:\/\/www.fidcyber.com\/blog\/ediscovery\/judge-david-campbell-predictive-coding-rarely-proposed-rarely-used\/","title":{"rendered":"Judge David Campbell: Predictive coding rarely proposed, rarely used"},"content":{"rendered":"

\"Capture\"<\/a><\/p>\n

This is the second part of an interview with US District Court Judge David Campbell<\/a>, the former chair of the advisory committee responsible for drafting newly promulgated amendments<\/a> to the Federal Rules of Civil Procedure. In part one<\/a>, Judge Campbell addressed the prospective impact\u00a0of the rule changes, and what their emphasis on proportionality and cooperation may mean in practice. He also outlined the evolution of the federal spoliation sanction rule, 37(e), which has been the focus of much debate and handwringing.<\/p>\n

Here he discusses what other measures must accompany the rule changes to bring a substantive reduction in\u00a0litigation costs, speed case resolutions, and reopen the federal court system to those it has priced out. We also ask him to share his experience with predictive coding and how it is \u2014 or is not \u2014 being used in his courtroom.<\/p>\n

Logikcull<\/strong>: In the commentary to Rule 37<\/a>, the committee noted that \u201cThe court should be sensitive to the party\u2019s sophistication with regard to litigation in evaluating preservation efforts; some litigants, particularly individual litigants, may be less familiar with preservation obligations than others who have considerable experience in litigation.\u201d Has anybody challenged that language as potentially giving a free-pass to litigants who are \u201cwillfully ignorant\u201d \u2014 or maybe just lazy \u2014 when it comes to their preservation obligations?<\/p>\n

Hon. David Campbell<\/strong>: I have not heard those challenges. It may well be that some folks have that concern. I will tell you, from my perspective, a very important background for this rule change is that the reality is that ESI in now in the possession of everybody. The personal injury plaintiff who walks into the lawyer\u2019s office on crutches after the car accident has ESI that\u2019s relevant to the injury, whether it\u2019s their Facebook page, or the text they sent to their girlfriend after the accident, or communications with their doctors, or emails they might have sent. And that\u2019s a very different world than we lived in 20 years ago. The reason for the comment you just read from the committee note is that if that person turns out to have not stopped Facebook\u2019s deletion of posts \u2014 and I don\u2019t know how Facebook deletes posts, but just use that as a hypothetical \u2014 a court can take into account their lack of sophistication in deciding later what Rule 37(e) measures should be imposed.<\/p>\n

And I think that\u2019s right. I don\u2019t think we should hold them to the same standard as an entity that has an IT department. A number of the most prominent cases on the loss of ESI \u2014 I believe this is correct \u2014 deal with the plaintiff\u2019s loss of ESI.<\/p>\n

We had an expert tell us in one of these (rules committee) hearings that by 2018 \u2014 maybe he said 2020 \u2014 there will be 26 billion devices on the internet, which is, you know, four for every person on Earth. And the truth is, I believe, five years from now, 10 years from now, the amount of information that each person<\/i> has in the cloud will be equivalent to the kinds of records that use to be found in the filing cabinets of entire businesses<\/i>. So ESI, in my view, isn\u2019t just a problem for the big entities. It\u2019s a litigation issue for everyone, and this rule (Rule 37(e)) tries to take that into account.<\/p>\n

\u201cFive years from now, the amount of information that each\u00a0person\u00a0<\/em>has in the cloud will be equivalent to the kinds of records that use to be found in the filing cabinets of entire\u00a0businesses<\/em>. So ESI, in my view, isn\u2019t just a problem for the big entities. It\u2019s an issue for everyone.\u201d<\/h3>\n

Logikcull<\/strong>: Well, to that point, data growth is accelerating at an incredible rate. Is there any fear that whatever cost-lowering impact these changes will ultimately have will be negated by the fact that, not only is there going to be exponentially more data, but also that the technology available to handle that data does not appear to be getting much cheaper? Do you have that concern? I imagine you do.<\/p>\n

Judge Campbell<\/strong>: I do. I think any judge or any lawyer involved in litigation should. We are hoping that these rule changes help through Rule 37(e) in bringing some level of uniformity of how you deal with the loss of information. We hope Rule 37(e) will reduce the amount of side litigation that occurs over loss of ESI and sanctions. The proportionality change and the case management changes, as well, are intended to get judges involved earlier in cases and work with the parties in figuring out how we get cases resolved efficiently given many factors, one of which is ESI which has to be dealt with in the case.<\/p>\n

I don\u2019t pretend to believe we\u2019ve solved the problem. I think you\u2019re right \u2013 we don\u2019t really foresee the extent of the problem and it\u2019s something that the courts are going to have to adapt to. But our intent is to at least make some progress on dealing with ESI through these amendments.<\/p>\n

\u201cI don\u2019t pretend to believe we\u2019ve solved the problem. We don\u2019t really foresee the extent of the problem.\u201d<\/h3>\n

Logikcull<\/strong>: Judge, what\u2019s your sense of how well technology \u2014 and I\u2019m now\u00a0talking about the legal provider side, or e-discovery vendor side \u2014 has developed and been adopted by practitioners to counter these rising data volumes? I\u2019m particularly interested in knowing your thoughts on, if you\u2019ve even seen it, the utility of predictive coding\u2026 The field has put a ton of faith into that process and others, and into technology in general \u2014 and it seems to me, anyway, that the results have been somewhat underwhelming. Do you have an opinion on that?<\/p>\n

Campbell<\/strong>: I\u2019ve got some thoughts. I don\u2019t know if they\u2019re mature enough to call them an opinion [laughing]\u2026 I think it\u2019s a reality that, going forward, we\u2019re going to have to find technological solutions to this growth of ESI. The reality is that the old model of having lawyers or paralegals review every document that\u2019s produced is not going to work. It just can\u2019t work in a world where you\u2019re dealing with millions of documents. We either incur enormous expenses continuing that model; or we surrender and produce everything \u2014 which I don\u2019t think lawyers are going to do; or we need to find a technological way to winnow down the ESI to a manageable size.<\/p>\n

So my view is, whether it can accurately be said that, today, technology is solving the problem, ultimately it\u2019s going to have <\/i>to solve the problem, because I don\u2019t think the court system and lawyers are going to be able to continue dealing with it the way we dealt with paper evidence.<\/p>\n

I will also say that I\u2019m finding in my cases that predictive coding or technology-assisted review is rarely proposed by the parties and rarely used. I think that will change over time. I\u2019ve seen more of it over the last few years. But it is still used in a very small percentage of the cases. And I am surprised at the number of big document cases where the parties do not use it, even when I suggest it. They instead prefer keyword searches.<\/p>\n

I think part of that is the need to educate the bar through sophisticated litigators as to what the technology can do, and it is my hope that the predictions will prove true that it really can do this more quickly and more accurately than people.<\/p>\n

But I\u2019m not seeing it used widely in my cases, and, you know, Phoenix is the fourth or fifth biggest city in the United States. So I think we have our share of complex cases, and yet it is still a rare commodity in my cases.<\/p>\n

\u201cWhether it can accurately be said that, today, technology is solving the problem, ultimately it\u2019s going to have<\/em> to solve the problem, because I don\u2019t think the court system and lawyers are going to be able to continue dealing with it the way we dealt with paper evidence.\u201d<\/h3>\n

Logikcull<\/strong>: You mentioned the emphasis in the rule changes on making judges more proactive case managers. Judge [Paul] Grimm [of the federal District Court in Maryland], among others, has been pretty vocal about the idea that judges do not traditionally view themselves as case managers<\/a>, but as dispute resolutionists. What\u2019s your assessment of how well the judiciary will be able to take a more proactive role in facilitating some of these e-discovery issues?<\/p>\n

Campbell<\/strong>: I have no illusion that simply re-writing the rules is going to transform judges from passive to active case managers. It clearly won\u2019t. And as you know, the idea of active case management has been in the Federal Rules since 1983, when Rule 16 was revised to create an active role for judges. So we have been of the view that these rule changes need to be accompanied by a very significant education effort to encourage judges, in particular, to be more active case managers. Many are. But Judge Grimm is right that many still are not.<\/p>\n

There are a number of steps we\u2019ve taken. Members of the committee have written articles. We\u2019ve created videos that are now on the Federal Judicial Center\u00a0website<\/a> that have been sent to every federal judge in the country explaining the rule changes. The committee has written letters to every chief district judge and every chief circuit judge in the country asking that they include the new rule amendments in district and circuit conferences next year to educate judges and lawyers about them. We\u2019ve compiled materials that are available for judges on the FJC website \u2014 articles, PowerPoints and other things. And the Federal Judicial Center, which is the entity that trains judges, is intending to do more active training of judges. We\u2019re hoping that that push, along with the rule changes, will bring about a behavior change on the part of us judges. Whether or not it works, we\u2019ll have to see over time. But I\u2019m hoping, at least with many judges, it will produce more active case management.<\/p>\n

Logikcull<\/strong>: To stay on this theme of education, but now turning to educating the bar <\/i>and practitioners\u2026 I get the sense, just as an outside observer, that there is an education gap. You have some small percentage of highly knowledgeable people who are technically competent who typically, though certainly not always, come from the largest law firms and largest corporations. And then you have some large remnant that tends to not understand this stuff at all. You\u2019re at the federal court level. Is that what you\u2019re seeing? Or are you seeing a general rising of education?<\/p>\n

Campbell<\/strong>: Well I certainly see lawyers who understand the rules and are dealing with ESI better than others do. But I don\u2019t think I would say that you find all of the best prepared lawyers in the large law firms or large corporations. I see many lawyers who are sole practitioners or who are in small firms or government attorneys who are right on top of ESI and the rules.<\/p>\n

But there\u2019s no doubt that many are not. I think that is changing. I alluded to it a moment ago, I\u2019m seeing more and more \u2014 although it\u2019s still a fairly small percentage \u2014 thinking about things like technology-assisted review. And I\u2019m definitely seeing more who are dealing with ESI up front and talking about it at the Rule 26(f) conference. I\u2019m hoping that the publicity that occurs in connection with these rules amendments \u2014 and there is a fair amount of publicity going on through various bar groups \u2014 will educate lawyers about these ESI issues in a way that they haven\u2019t been before. As I said earlier, we have to deal with ESI in the federal courts. I think everybody involved is becoming more and more aware of it \u2014 and we\u2019ll see lawyers become more sophisticated over time.<\/p>\n

\u201cI\u2019m seeing more and more (lawyers) \u2014 although it\u2019s still a fairly small percentage \u2014 thinking about things like technology-assisted review.\u201d<\/h3>\n

Logikcull<\/strong>: Some practitioners see the expense associated with e-discovery as an access to justice problem. Judge John Facciola has gone so far as to say that e-discovery is contributing to making the federal court system a \u201cplayground for the rich.\u201d<\/a>\u00a0Is that a sentiment that you share?<\/p>\n

Campbell<\/strong>: I don\u2019t think I would call it a \u201cplayground for the rich,\u201d but I absolutely agree that too many people cannot afford to litigate in federal court. I do think the cost of federal litigation makes it unavailable to the average citizen. And I see many of them who are representing themselves struggling to handle a case because they can\u2019t get a lawyer to take it because it doesn\u2019t have enough money at stake. I think that\u2019s a problem.<\/p>\n

\u201cI do think the cost of federal litigation makes it unavailable to the average citizen. And I see many of them who are representing themselves struggling to handle a case because they can\u2019t get a lawyer to take it because it doesn\u2019t have enough money at stake.\u201d<\/h3>\n

That\u2019s one of the problems we talked about at the 2010 conference that I mentioned<\/a>. Part of our intent in putting the proportionality idea into the new rules and trying to get judges to actively manage cases more efficiently from the beginning, and we hope cutting down the side litigation over the loss of ESI, is to reign in the cost of discovery. There are other things that the Civil Rules Committee and other Judicial Conference committees are looking at to try to make civil litigation less expensive.<\/p>\n

But in my view, it absolutely is a problem, and one that we need to work hard as a federal judiciary to solve.<\/p>\n","protected":false},"excerpt":{"rendered":"

This is the second part of an interview with US District Court Judge David Campbell, the former chair of the advisory committee responsible for drafting newly promulgated amendments to the Federal Rules of Civil Procedure. In part one, Judge Campbell … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[],"class_list":["post-35","post","type-post","status-publish","format-standard","hentry","category-ediscovery"],"_links":{"self":[{"href":"https:\/\/www.fidcyber.com\/blog\/wp-json\/wp\/v2\/posts\/35"}],"collection":[{"href":"https:\/\/www.fidcyber.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.fidcyber.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.fidcyber.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.fidcyber.com\/blog\/wp-json\/wp\/v2\/comments?post=35"}],"version-history":[{"count":3,"href":"https:\/\/www.fidcyber.com\/blog\/wp-json\/wp\/v2\/posts\/35\/revisions"}],"predecessor-version":[{"id":39,"href":"https:\/\/www.fidcyber.com\/blog\/wp-json\/wp\/v2\/posts\/35\/revisions\/39"}],"wp:attachment":[{"href":"https:\/\/www.fidcyber.com\/blog\/wp-json\/wp\/v2\/media?parent=35"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.fidcyber.com\/blog\/wp-json\/wp\/v2\/categories?post=35"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.fidcyber.com\/blog\/wp-json\/wp\/v2\/tags?post=35"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}