Clawback Agreements to Eliminate the Burden of Privilege Review

I am gonna to hit the brakes, he’ll fly right by me.

Maverick, Top Gun

You’re gonna do what?

Merlin, Top Gun

 

Attorneys feel compelled by their duty of competency to their clients to have eyes on every document that might be privileged.

Given cases such as J-M Manufacturing it is easy to see why attorneys are concerned about privilege review in large document review cases.

If an associate attorney were to tell a partner she could rely on a clawback agreement and not conduct privilege review, it is a safe bet the partner would respond as Merlin did to Maverick in Top Gun.

In re Coventry Healthcare, Inc. v. This Document Relates involves issued of undue burden in producing electronically stored information. The Defendants argued that the Plaintiff’s proposed search terms produced “hits” of nearly 200,000. The Defendants claimed the estimated cost to process, host and review the data for responsiveness and privilege was approximately $388,000. In re Coventry Healthcare, Inc. v. This Document Relates, 2013 U.S. Dist. LEXIS 39050, at *14 (D. Md. Mar. 21, 2013). Accordingly, the Defendants sought relief under the proportionality principles of Rule 26(b)(2)(C)(iii).

The parties to their credit had negotiated over search terms to ease the burden on the Defendants (and ultimately themselves in what the Plaintiffs would have to review).

The Court made what some would consider a surprising statement: [A] clawback order can protect Defendants against a claim of waiver, such that Defendants need no longer bear the cost of reviewing the ESI for responsiveness and privilege. In re Coventry Healthcare, Inc., at *16. As such, the Defendants failed to show undue burden in producing electronically stored information.

The Court’s ruling is not the first time such an order was given. As stated in footnote 6, former Magistrate Judge (now District Court Judge) Paul Grimm found that “the more practical approach is to avoid the necessity of an expensive and time-consuming privilege review by entry of a court order with a clawback provision that protects against a claim of waiver by production of a privileged document.” In re Coventry Healthcare, Inc., at 14-15, fn 6, citing Hopson v. Mayor & City Council of Baltimore, 232 F.R.D. 228 (D. Md. 2005).

The Court granted the Plaintiff’s motion to compel and invited the Defendants to confer with the Plaintiffs on a clawback order if they wanted one.

Bow Tie Thoughts

There are several thought leaders who have argued that the cost of privilege review can be eliminated with protective orders and clawback agreements. While having both is definitely a good idea, many attorneys feel terrified at not conducting some sort of privilege review.

One option to privilege review is to leverage technology-assisted review in identifying potentially privileged ESI. I would still always recommend a clawback agreement and potentially a protective order, depending on the subject matter of the ESI. However, TAR such as predictive coding could be used to identify potentially privileged material. Generally speaking, many attorneys have an idea what sort of communications or files will be protected by a privilege. Leveraging technology to identify attorney-client communications, intellectual property, or personal identifiable information can enable the data to be organized based on both privilege and responsiveness. This allows the attorneys to review data that is potentially privilege, if they are so inclined to have eyes on such ESI.

2012 Case Law Year-In-Review

2012 eDiscovery Case Law included everything from Tweets to Computer-Assisted Review. However, there was also a very basic theme that is hard to ignore: Cases should be about the merits. And for cases to be decided on the merits, attorneys need to educate themselves on electronic discovery so they know what to argue to a Judge.

Many 2012 cases focused on search terms search term efficiency, demonstrating undue burden, and proportionality, which all highlighted the need for attorneys to understand electronic discovery. Attorneys cannot competently represent their clients without understanding what technology is relevant in a case; the possible sources of electronically stored information; and what technology to use to review electronically stored information.

I discuss many of these cases in my Year in Review, available on the above YouTube link and on my podcast channel.

I wish everyone a very success 2013.

Judicial Test Pilot

When you think of Tom Wolfe’s “The Right Stuff,” test pilots and astronauts immediately come to mind. Aviators who risked their lives testing new technology that went higher and faster than anything else that could fly.

The pilots who flew the X planes of the 1940s to 1960s built the future we have today. Simply put, without the Space Program, we would not have had the Computer Era of the 1970s. Without the innovations of the 1970s, we would not have social networks and smartphones of today.

Lawyers and Judges do not come to mind when you say “test pilot.”  However, we do have brave attorneys and judges willing to “fly higher” than others for the greater good. Magistrate Judge Andrew Peck is one of them for his Da Silva Moore v Publicis Groupe & MSL Group opinion.

Judge Peck’s “computer-assisted review” opinion is a watershed because of its recognition of using technology to save money and find responsive electronically stored information.  As Michael Arkfeld commented on the Moore opinion being upheld, “Years from now we will look back and refer to this as the Zubulake for Search!”

When discovery is in the terabytes and there are millions of files to review, Federal Rule of Civil Procedure Rule 1 requirements to “secure the just, speedy, and inexpensive determination” of a lawsuit are often the first casualties of litigation. Fed. R. Civ. P. 1.

The Plaintiffs challenged Judge Peck’s Da Silva Moore order on numerous grounds. District Judge Andrew Carter upheld the order, referring to the findings as “well reasoned and they consider the potential advantages and pitfalls of the predictive coding software.”  Moore v. Publicis Groupe & Msl Group, 11 Civ. 1279 (ALC) (AJP).

Let’s explore the significance of Magistrate Judge Peck’s order.

What is Computer Assisted Review?

There are many forms of “computer-assisted review” besides “predictive coding.”  For example, California Rules of Court Rule 3.750(b)(10) allows a Court in complex litigation to order the parties to use an “electronic document depository.”  Such a depository would likely be a “cloud” solution, enabling parties to individually login to access the discovery for search and review.

Magistrate Judge Facciola is also no stranger to cases highlighting “computer-assisted review.”

In El-Amin v. George Wash. Univ., Judge Facciola ordered the parties consider using a hosted review platform.

The order set out as a “primary goal” for the parties to select a review platform with “hyper-linked to fields in a database that will permit the instantaneous retrieval from within the database of the information offered by plaintiffs in support of any factual proposition.”  El-Amin v. George Wash. Univ., 2008 U.S. Dist. LEXIS 85009 (D.D.C. Oct. 22, 2008).

Judge Facciola also warned of trying to use every new litigation support technology to trying to find electronically stored information:

[N]ew technologies have the capacity to be outcome determinative but often at significant expense. Thus the courts are required to strike a balance between allowing the requesting party to take full advantage of the technologies available to it and protecting the producing party from having to pay to leave no stone unturned. Resting all of the costs of electronic discovery on the producing party may create a perverse incentive on the part of the requesting party to dispense with reason and restraint and unleash every new technology under the sun to try and find information that supports the requesting party’s claims.

Covad Communs. Co. v. Revonet, Inc., 2009 U.S. Dist. LEXIS 47841, at * 29-30 (D.D.C. May 27, 2009).

Lite This Candle: Data Analytics & Discovery

“This judicial opinion now recognizes that computer-assisted review is an acceptable wayto search for relevant ESI in appropriate cases.”

Judge Andrew Peck

Moore v. Publicis Groupe & Msl Group, 2012 U.S. Dist. LEXIS 23350, at *2 (S.D.N.Y. Feb. 24, 2012)

“Computer-Assisted Review” as discussed in the Da Silva Moore opinion focused on “predictive coding.”

This is a significant difference than many of the past cases addressing “computer-assisted review,” because many of those cases either focus on 1) simply using a review application; or 2) search terms and/or the adequacy of a production.

Judge Peck defined “computer-assisted coding” in his article “Search Forward,” as the “use [of] sophisticated algorithms to enable the computer to determine relevance, based on interaction with (i.e., training by) a human reviewer.” Moore, at *5.

“Predictive coding” is probably better defined as data or mechanical analytics. “Data Analytics” is defined on SearchDataManagement.com as follows:

Data analytics (DA) is the science of examining raw data with the purpose of drawing conclusions about that information. Data analytics is used in many industries to allow companies and organization to make better business decisions and in the sciences to verify or disprove existing models or theories. Data analytics is distinguished from data mining by the scope, purpose and focus of the analysis. Data miners sort through huge data sets using sophisticated software to identify undiscovered patterns and establish hidden relationships. Data analytics focuses on inference, the process of deriving a conclusion based solely on what is already known by the researcher.

Taking Flight: Goals of Discovery Review

The practice of law is frequently a casualty when it comes to reviewing large sets of data in discovery.

It is important not to forget the goals of discovery: Document review does not exist for the sake of document review; it exists to find relevant information.

Magistrate Judge Peck outlined the following goals of discovery review in his order, which stand as a strong reminder of the purpose of discovery:

The objective of review in ediscovery is to identify as many relevant documents as possible, while reviewing as few non-relevant documents as possible.

Recall is the fraction of relevant documents identified during a review; precision is the fraction of identified documents that are relevant.

Thus, recall is a measure of completeness, while precision is a measure of accuracy or correctness. 

The goal is for the review method to result in higher recall and higher precision than another review method, at a cost proportionate to the “value” of the case.

Moore v. Publicis Groupe & Msl Group, 2012 U.S. Dist. LEXIS 23350, at *27 (S.D.N.Y. Feb. 24, 2012) (Emphasis Added)

The Eyes of the World Are Upon You: Why Court Found Computer Assisted Review Appropriate

Magistrate Judge Peck found “computer-assisted review” to be appropriate for the following reasons:

(1) The parties’ agreement [Something contested by the Plaintiffs]

(2) The vast amount of ESI to be reviewed (over three million documents)

(3) The superiority of computer-assisted review to the available alternatives (i.e., linear manual review or keyword searches)

(4) The need for cost effectiveness and proportionality under Rule 26(b)(2)(C)

(5) The transparent process proposed by [Defendant].

Moore v. Publicis Groupe & Msl Group, 2012 U.S. Dist. LEXIS 23350, at *35-36 (S.D.N.Y. Feb. 24, 2012)

Fairing: Reading Rule 26(g)

“In large-data cases like this, involving over three million emails, no lawyer using any search method could honestly certify that its production is “complete” — but more importantly, Rule 26(g)(1) does not require that. Plaintiffs simply misread Rule 26(g)(1).”

Judge Andrew Peck

Moore v. Publicis Groupe & Msl Group, 2012 U.S. Dist. LEXIS 23350, 20-23 (S.D.N.Y. Feb. 24, 2012).

The Plaintiffs challenged the predictive coding protocol under Rule 26(g)(1)(A), arguing that production had to be certified as “complete,” and that the Defendants were given “unlawful cover” with the predictive coding protocol. Moore v. Publicis Groupe & Msl Group, 2012 U.S. Dist. LEXIS 23350, at *21 (S.D.N.Y. Feb. 24, 2012).

Judge Peck held the Plaintiffs’ reading of Rule 26(g)(1)(A) was erroneous, because the certification requirements applied to initial disclosures under Rule 26(a)(1); Discovery responses are covered by Rule 26(b)(2)(C)’s proportionality principle.  Moore v. Publicis Groupe & Msl Group, 2012 U.S. Dist. LEXIS 23350, 20-23 (S.D.N.Y. Feb. 24, 2012).

Go Around: Federal Rule of Evidence Rule 702 & Daubert

The Plaintiffs challenged the predictive coding protocol as violating Federal Rule of Evidence Rule 702 and Daubert, in part, because the Defense experts spoke at the hearing, but were not sworn in at the time. Moore v. Publicis Groupe & Msl Group, 2012 U.S. Dist. LEXIS 23350, at *23 (S.D.N.Y. Feb. 24, 2012).

The Court held that Rule 702 & Daubert apply to presenting evidence at trial; the Rules are not applicable in how ESI is searched for in discovery. Id. As the Court explained:

If MSL sought to have its expert testify at trial and introduce the results of its ESI protocol into evidence, Daubert and Rule 702 would apply. Here, in contrast, the tens of thousands of emails that will be produced in discovery are not being offered into evidence at trial as the result of a scientific process or otherwise. The admissibility of specific emails at trial will depend upon each email itself (for example, whether it is hearsay, or a business record or party admission), not how it was found during discovery.

Moore v. Publicis Groupe & Msl Group, 2012 U.S. Dist. LEXIS 23350, at *23 (S.D.N.Y. Feb. 24, 2012).

Message from the Control Tower

District Judge Andrew Carter upheld Magistrate Judge Peck’s order after the Plaintiffs challenged Judge Peck’s order on numerous grounds. Moore v. Publicis Groupe & Msl Group, 11 Civ. 1279 (ALC) (AJP).

Judge Carter said the following on the protocol (and the confusion over whether the Plaintiffs agreed to the protocol):

Nevertheless, the confusion is immaterial because the ESI protocol contains standards for measuring the reliability of the process and the protocol builds in levels of participation by Plaintiffs. It provides that the search methods will be carefully crafted and tested for quality assurance, with Plaintiffs participating in their implementation. For example, Plaintiffs’ counsel may provide keywords and review the documents and the issue coding before the production is made. If there is a concern with the relevance of the culled documents, the parties may raise the issue before Judge Peck before the final production. Further, upon the receipt of the production, if Plaintiffs determine that they are missing relevant documents, they may revisit the issue of whether the software is the best method. At this stage, there is insufficient evidence to conclude that the use of the predictive coding software will deny Plaintiffs access to liberal discovery. 

Moore v. Publicis Groupe & Msl Group, 11 Civ. 1279, at *3-4 (ALC) (AJP).

Judge Carter found the challenge on the reliability of the “predictive coding” were “premature.”  The Court stated, “It is difficult to ascertain that the predictive software is less reliable than the traditional keyword search.” Moore v. Publicis Groupe & Msl Group, 11 Civ. 1279, at *4 (ALC) (AJP).

The Court noted that experts were present at the hearing and that the “lack of a formal evidentiary hearing at the conference is a minor issue because if the method appears unreliable as the litigation continues and the parties continue to dispute its effectiveness, the Magistrate Judge may then conduct an evidentiary hearing.” Id.

Judge Carter stated the following on Plaintiffs’ challenges to the protocol being “speculative”:

Judge Peck is in the best position to determine when and if an evidentiary hearing is required and the exercise of his discretion is not contrary to law. Judge Peck has ruled that if the predictive coding software is flawed or if Plaintiffs are not receiving the types of documents that should be produced, the parties are allowed to reconsider their methods and raise their concerns with the Magistrate Judge. The Court understands that the majority of documentary evidence has to be produced by MSLGroup and that Plaintiffs do not have many documents of their own. If the method provided in the protocol does not work or if the sample size is indeed too small to properly apply the technology, the Court will not preclude Plaintiffs from receiving relevant information, but to call the method unreliable at this stage is speculative. 

Moore v. Publicis Groupe & Msl Group, 11 Civ. 1279, at *4 (ALC) (AJP).

Bow Tie Thoughts

Judge Peck and Judge Carter’s opinions will have a lasting impact in eDiscovery.  This is not a case of machines replacing humans, but the importance of using technology to identify what is relevant to a lawsuit.  Moreover, perfection is not the standard in discovery; proportionality is simply not disappearing ink in the Federal Rules of Civil Procedure.

It is also noteworthy that Judge Carter adopted Judge Peck’s analysis of Rule 26(g) and Federal Rule of Evidence Rule 702 in footnote 3 of his opinion.  I have met many attorneys who viewed productions needing to be certified as being “complete and correct” under Rule 26(g)(1)(A).  Seeing both a Magistrate Judge and District Judge who held that productions are not held to a standard of perfection, but one of proportionality, should bring more reason to large cases requiring the review of terabytes of ESI.

The goal of discovery is to find relevant information.  Data analytics that assist attorneys in determining relevant ESI will enable lawyers to focus on litigating their clients interests, opposed to slogging through protracted document review.

The adoption of “data analytics” in discovery review will be a significant step to focusing on the practice of law instead of review. However, like any technology, it must be used correctly. This requires attorneys with knowledge, who put the time in to learn how the application operates. Moreover, the system must be tested to ensure either the system is working correctly or whether the search terms need to be adjusted to find relevant ESI. There are a host of other technical issues to make sure the process is defensible.

“Data Analytics” will not be limited to helping attorneys with the three million record cases. Solo practitioners to lawyers at mid-sized firms who can leverage this technology (once commercially affordable or offered by service providers) to identify relevant ESI out of 20,000 records in a matter or days, or hours, will provide greater services to their clients than those who are not using such technology.

How to Get an eDiscovery Evidentiary Hearing

Judge David Waxse waded into a case that highlighted issues in parties not cooperating and possible inadequate preservation, search and production of ESI.  Chura v. Delmar Gardens of Lenexa, Inc., 2012 U.S. Dist. LEXIS 36893, 7-8 (D. Kan. Mar. 20, 2012).

The litigation involved an employment dispute with claims of sexual harassment, hostile work environment and other employment-based causes of action.

The Plaintiffs challenged the sufficiency of the responses to multiple discovery requests, starting with their first request for production.

Plaintiffs’ Request for Production 1 directed the Defendant to produce information from 10 individuals identified by the Defendants with knowledge of the facts in the lawsuit.  Chura, at *3-4.

The Defendants’ reply referred the Plaintiffs to the complaints and personnel files of the Plaintiffs. Chura, at *4.

The Plaintiffs claimed the Defendants failed to produce the “written complaints, any emails or phone logs, the investigation files, and their personnel files.” Chura, at *4. The production also lacked ESI one would normally expect in employment litigation, such as

[E]mails between Defendant’s managers and witnesses regarding Plaintiffs’ allegations or Defendant’s defenses;

[N]otes by the human resource director from the investigation she conducted as a result of Plaintiffs’ complaints about the alleged harasser and the environment at the nursing facility where Plaintiffs worked; and

[R]eports and emails to the corporate office regarding the complaints.

Chura, at *4.

The production void also lacked any information created by the HR Director or facility administrator regarding their investigation; complaints by the Plaintiffs; complete wage payment records; performance appraisals; or witness statements.  Chura, at *5-6. As the Plaintiffs argued and Court recounted:

It does not make any sense that in response to numerous complaints from employees about the work environment that a corporate human resources manager would be sent to investigate and not create a single document reporting her findings to Defendant’s corporate managers.

Chura, at *6.

The Court found it was unlikely the Defendant had no responsive information besides the personnel files and discrimination complaints.

Judge Waxse also stated it was “questionable” that the investigation of the complaints had no email, correspondence of other reports.  Chura, at *6.

Further, the Plaintiffs claimed the Defendants’ search methodology was simply running an Outlook search on the alleged harasser’s computer. Chura, at *7.

The Court ordered the following evidentiary hearing over the discovery dispute:

Based upon the limited information provided in the parties’ briefing, the Court cannot determine whether Defendant met its duty to both preserve relevant evidence or conduct a reasonable search for ESI responsive to Request No. 1. It is unclear what actions Defendant undertook in order to preserve and search for ESI responsive to Request No. 1. The Court finds that Defendant’s failure to produce any ESI, such as emails, attachments, exhibits, and word processing documents, raises justifiable concerns that Defendant may have 1) failed to preserve relevant evidence, or 2) failed to conduct a reasonable search for ESI responsive to the discovery requests.n5 The Court will therefore set an evidentiary hearing regarding Defendant’s efforts to preserve and search for ESI responsive to Plaintiffs’ interrogatories and requests for production. Based on the evidence presented at the hearing, the Court will determine whether Defendant made reasonable efforts to preserve relevant evidence and search its computer systems for ESI responsive to Request No. 1.

Chura, at *7-8.

Evidentiary hearings were also granted to several other challenges to the sufficiency of the Defendants’ searches over other discovery requests.

Bow Tie Thoughts

There are many attorneys that have a difficult concept with searching for electronically stored information.  I have met some who consider “search” merely running a single keyword search in Outlook.

For some attorneys, asking them to define “search” is par with asking them to define “liberty.”  There are many forms of “searching” and it is important to understand how the term is being used in the different stages of litigation.

“Search” may mean to a corporate client using a content management system to identify custodians, date ranges and other determining information to identify ESI for preservation.  This ESI can then exported out for analysis in an “early case data assessment” platform or processed for document review.

“Search” may mean to an individual party the collection of data with a strategic collection methodology that can be defended in court. This can include preserving the information with target search technologies to find relevant ESI, such as AD Triage or PinPoint Labs Harvester.

A lawyer with a “small” case in the single Gigabytes may want to use a product like Proof Finder by Nuix for searching the dataset for relevant ESI.

Moving to the other side of the data spectrum, a party with double digit Terabytes of data may want to “search” the dataset with a “computer-assisted review” application, such as OrcaTec’s Document Decisioning Suite. There are several products on the market that can “learn” from a reviewing attorney and identify relevant other relevant ESI based off the attorney’s relevancy determinations.

The actual review of electronically stored information often requires running search terms across ESI based off a propounding party’s discovery requests.  All litigation support review platforms have basic search technology, in addition to different advanced analytical tools.

For example, XERA from iConect can identify relationships between email messages with its “6 Degrees – Relationship Visualizer.”

There is amazing technology in the market to solve eDiscovery challenges, however, there is still a huge “search” problem in the preservation and production stages of a lawsuit.  Many of these issues can be resolved by using the right technology by people with knowledge on how to use the technology correctly. The right technology will differ case to case, which only highlights the need for lawyers to work with consultants who understand eDiscovery tools as they relate to different clients.

(Disclosure: I have business relationships with all of the companies mentioned in this post and friends at each organization).

A Search Terms Gam

Determining search terms can sink into a voyage on the Pequod hunting a white whale. If a party obsesses over search terms, they may find themselves quoting Captain Ahab as they sink in an over-inclusive ocean of electronically stored information.

To The Last, I Grapple With Thee

In EEOC v. McCormick & Schmick’s Seafood Rests., Inc., the parties disagreed over search terms for the following EEOC discovery request:

“[E]mail communications responsive to EEOC’s First Request for Production of Documents to Defendants, particularly those relating to applicants, hiring, complaints of racial discrimination, and server section assignments…”

EEOC v. McCormick & Schmick’s Seafood Rests., Inc., 2012 U.S. Dist. LEXIS 13134, 13-14 (D. Md. Feb. 3, 2012).

The Defendants claimed the EEOC did not provide any proposed search terms to limit the whale of a tale of email for the Defendants to search.  McCormick & Schmick’s Seafood Rests., Inc., at *14.

The Court explained the practice, and danger, of just the producing party searching oceans of email:

Common practice governing the discovery of electronically stored information requires the use of search terms to make an extraordinarily burdensome search comply with the tenets of Fed.R.Civ.Proc. 26(b)(2)(C). If the producing party generates the search terms on its own, the inevitable result will be complaints that the search terms were inadequate.

McCormick & Schmick’s Seafood Rests., Inc., at *14.

Gamming Over Search Terms

In old nautical traditions, a gam is a rendezvous of ships at sea. In today’s legal world, it is similar to a meet and confer.

The Court, recognizing the need for the parties to discuss search terms to narrow the data to emails relevant in the lawsuit, ordered the following:

For that reason, this Court will require the parties to confer on the development of reasonable search terms to be used to obtain responsive email communications in this case.

McCormick & Schmick’s Seafood Rests., Inc., at *14.

The Court ordered the EEOC to provide a list of search terms within five days. The Defendants were ordered to respond with any possible within five days after receiving the proposed search terms. The parties were to have good faith negotiations over any disagreements.  McCormick & Schmick’s Seafood Rests., Inc., at *14-15.

…And like Melville’s great whale circling the ships, the Court stated that if the parties could not agree on reasonable search terms:

[The] Court will determine, after review of the parties’ proposed lists and particularized information regarding the burden to be imposed by the proposed search, which terms will be used to allow Defendants to provide responsive email communications.

McCormick & Schmick’s Seafood Rests., Inc., at *15.

Bow Tie Thoughts

Developing search terms with an opposing party can drive a lawyer to sound like Gregory Peck…and not as Atticus Finch from To Kill a Mockingbird. 

Search terms are not something a lawyer can take revenge on for producing large data sets. In fact, parties need to meet and confer in cases with large volumes of data, to avoid searching the oceans for relevant ESI.

Here are just a few strategies for determining search terms:

Select Team for Creating Search Terms:

Litigating attorney, client, expert in subject matter, expert in building keyword search strings

Determine data sources.

Brainstorm possible names, events, dates and phrases that may be connected to the case.

Compile a list of last names, first names, surnames, nicknames, positions and other titles connected to the case. 

Determine acronyms, abbreviations, buzzwords and/or euphemisms related to the keywords or factual issues. 

List date ranges that correspond with critical time period in case.

Determine key event terms (heart attack, cardiac, hospital).

Determine search phrases.

Use thesaurus to locate similar words.

See, Michael R. Arkfeld, Arkfeld’s Best Practices Guide for ESI Pretrial Discovery-Strategy and Tactics, § 3.7(f) (2011-2012 Ed.).

Document review should not be a Melvillean maelstrom of over expansive data. If the discovery is in the terabytes, search terms and a defensible methodology are a necessity in order to find the relevant ESI.  Moreover, cooperation between the parties is vital for success, to avoid one party selecting very narrow search terms and the other claiming the search was under-inclusive.

Mechanical Analytics, or predictive coding, is one of the “newer” technologies in being able to help determine relevant ESI.  Predictive coding is arguably necessary in cases with extremely large volumes of ESI, because of efficiency and cost-savings in being able to identify relevant ESI faster than traditional review.

In essence, the software learns from a reviewing attorney who is a subject matter expert in the case and identifies additional relevant ESI based off the work done by the attorney. That is a very simple description of the technology. For a more detailed discussion, see this article by Herb Roitblat from OrcaTec (Disclosure: I have friends at OrcaTec and I have referred business to them).

Finding relevant electronically stored information is not a mad hunt for a white whale. With the right technology and strategies, parties can narrow data sets to relevant information.