When Should E-Discovery Vendors Be Disqualified? Gordon V. Kaleida Health Case

Generally speaking, courts have inherent authority to disqualify parties, representatives, and consultants from participating in litigation.  Attorneys, expert witnesses, and litigation consultants may face disqualification motions in the event of a conflict of interest. With the rapid expansion of the eDiscovery industry, however, a new question has arisen: If an eDiscovery vendor has a potential conflict of interest, when should it be disqualified?  What standard should apply?

To put the problem in perspective, imagine that you manage discovery at a law firm representing the defendant in a contentious wage and hour dispute, and you recently hired an eDiscovery vendor to assist you in scanning and coding your client’s documents, at a cost of $50,000.  Two months later, you receive notice from your vendor that the plaintiff’s counsel has requested its services in connection with the same case.  How would you react?  Would you expect a court to disqualify the vendor if it accepted the engagement?  This scenario occurred in Gordon v. Kaleida Health, resulting in the first judicial order squarely addressing vendor disqualification.  The Kaleida Health court ultimately denied the defendant’s motion to disqualify, allowing the vendor to continue participating in the case.

Discussion of Gordon v. Kaleida Health

Kaleida Health arose out of a now commonplace dispute between a hospital and its hourly employees under the Fair Labor Standards Act (“FLSA”). The plaintiffs, a group of hourly employees, sued the defendant, Kaleida Health, a regional hospital system, claiming they were not paid for work time during meal breaks, shift preparation, and required training, in violation of FLSA.

Kaleida Health’s attorneys, Nixon Peabody, LLP (“Nixon”), hired D4 Discovery (“D4”), an eDiscovery vendor, to scan and code documents for use in the litigation. In connection with the work, Nixon and D4 executed a confidentiality agreement. D4 was to “objectively code” the documents using categories based on characteristics of the document, such as the author and the type of document. The coded documents would then be used by Nixon in preparing for upcoming depositions.

Two months later, plaintiffs’ counsel, Thomas & Solomon, LLP (“Thomas”), requested D4 to provide ESI consulting services to it in connection with the same case. D4 notified Nixon, who promptly objected based on the scanning and coding services D4 provided the defendant during the litigation. D4 then provided assurances that Kaleida Health’s documents would not be used in consulting the plaintiffs and that an entirely different group of employees would work with the plaintiffs’ counsel. Nixon, on behalf of Kaleida Health, persisted in its objection to D4 working for the plaintiffs and ultimately filed a motion to disqualify the vendor.

Magistrate Judge Foschio’s analysis began by outlining the standard governing the disqualification of experts and consultants.  According to the court, the entity sought to be disqualified must be an expert or a consultant, defined as a “‘source of information and opinions in technical, scientific, medical or other fields of knowledge’” or “one who gives professional advice or services” in that field. After the moving party makes this initial showing, it must meet two further requirements.  First, the party’s counsel must have had an “‘objectively reasonable’ belief that a confidential relationship existed with the expert or consultant.” Second, the moving party must also show “that . . . confidential information was ‘actually disclosed’ to the expert or consultant.”

Applying this standard, Judge Foschio ultimately found that because the scanning and objective coding services performed by D4 did not require specialized knowledge or skill and were of a “clerical nature,” D4 was not an “expert” or “consultant.” Further, the court determined that the defendant failed to prove that it provided confidential information to D4 because it did not show “any direct connection between the scanning and coding work . . . and Defendants’ production of [its] ESI.”

Rejecting Kaleida Health’s argument, the court declined to apply to D4 and other eDiscovery vendors the presumption of confidential communications, imputation of shared confidences, and vicarious disqualification applicable in the context of attorney disqualification when a party “switches sides.” The court— as an alternative basis to its finding that D4 did not act as an expert or consultant—held that disqualification was improper because no “prior confidential relationship” existed between Kaleida Health and D4.

Because Kaleida Health represents the first significant attempt at exploring the issues surrounding vendor disqualification, whether later courts should follow Kaleida Health’s lead in exclusively applying the disqualification rules for experts and consultants to vendors becomes the main issue in its wake.  To come to a conclusion on this point, one must first explore the different schemes that courts may apply when considering disqualification.

This above excerpt is a part of article originally written by Michael A. Cottone, a candidate for Doctor of Jurisprudence, The University of Tennessee College of Law, May 2014.

e-Discovery | cloud computing
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Appellate Court

Appellate Court – Lahore

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The trade-off between ‘Recall’ and ‘Precision’ in predictive coding (part 2 of 2)

This is the second part of the two-part series of posts relating to information retrieval by applying predictive coding analysis, and details out the trade-off between Recall and Precision. For part 1 of 2, click here.

To clarify further:

Precision (P) is the fraction of retrieved documents that are relevant, where Precision = (number of relevant items retrieved/number of retrieved items) = P (relevant | retrieved)

Recall (R) is the fraction of relevant documents that are retrieved, where Recall = (number of relevant items retrieved/number of relevant items = P (retrieved | relevant)

Recall and Precision are inversely related. A solid criticism of these two metrics is the aspect of biasness, where certain record may be relevant to a person, may not be relevant to another.

So how do you gain optimal values for Recall and Precision in a TAR platform?

Let’s consider a simple scenario:

• A database contains 80 records on a particular topic

• A search was conducted on that topic and 60 records were retrieved.

• Of the 60 records retrieved, 45 were relevant.

Calculate the precision and recall.

Solution:

Using the designations above:

• A = Number of relevant records retrieved,

• B = Number of relevant records not retrieved, and

• C = Number of irrelevant records retrieved.

In this example A = 45, B = 35 (80-45) and C = 15 (60-45).

Recall = (45 / (45 + 35)) * 100% => 45/80 * 100% = 56%

Precision = (45 / (45 + 15)) * 100% => 45/60 * 100% = 75%

So, essentially – the optimal result – high Recall with high Precision is difficult to achieve.

According to Cambridge University Press:

“The advantage of having the two numbers for precision and recall is that one is more important than the other in many circumstances. Typical web surfers would like every result on the first page to be relevant (high precision) but have not the slightest interest in knowing let alone looking at every document that is relevant. In contrast, various professional searchers such as paralegals and intelligence analysts are very concerned with trying to get as high recall as possible, and will tolerate fairly low precision results in order to get it. Individuals searching their hard disks are also often interested in high recall searches. Nevertheless, the two quantities clearly trade off against one another: you can always get a recall of 1 (but very low precision) by retrieving all documents for all queries! Recall is a non-decreasing function of the number of documents retrieved. On the other hand, in a good system, precision usually decreases as the number of documents retrieved is increased”


e-Discovery | cloud computing
New Jersey, USA | Lahore, PAK | Dubai, UAE
www.claydesk.com
(855) – 833 – 7775
(703) – 646 – 3043

Recall and Precision

Recall and Precision

The trade-off between ‘Recall’ and ‘Precision’ in predictive coding (part 1 of 2)

This is a two-part series of posts relating to information retrieval by applying predictive coding analysis, and details out the trade-off between Recall and Precision.

Predicting Coding – sometimes referred to as ‘Technology Assisted Review’ (TAR) is basically the integration of technology into human document review process. The two-fold benefit of using TAR is speeding up the review process and reducing costs. Sophisticated algorithms are utilized to produce relevant set of documents. The underlying process in TAR is based on concept of Statistics.

In TAR, a sample set of documents (seed-sets) are coded by subject matter experts, acting as the primary reference data to teach TAR machine recognition of relevant patterns in the larger data set. In simple terms, a ‘data sample’ is created based on chosen sampling strategies such as random, stratified, systematic, etc.

Remember, it is critical to ensure that seed-sets are prepared by subject matter experts. Based on seed-sets, the algorithm in TAR platform starts assigning predictions to the documents in the database. Through an iterative process, adjustments can be made on the fly to reach desired objectives. The two important metrics used to measure the efficacy of TAR are:

  1. Recall
  2. Precision

Recall is the fraction of the documents that are relevant to the query that are successfully retrieved, whereas, Precision is the fraction of retrieved documents that are relevant to the find. If the computer, in trying to identify relevant documents, identifies a set of 100,000 documents, and after human review, 75,000 out of the 100,000 are found to be relevant, the precision of that set is 75%.

In a given population of 200,000 documents, assume 30,000 documents are selected for review as the result of TAR. If 20,000 documents are ultimately found within the 30,000 to be responsive, the selected set has a 66% precision measure. But if another 5,000 relevant documents are found in the remaining 170,000 that were not selected for review, which means the set selected for review has a recall of 80% (20,000 / 25,000).

Click here to read part 2 of 2.


e-Discovery | cloud computing
New Jersey, USA | Lahore, PAK | Dubai, UAE
www.claydesk.com
(855) – 833 – 7775
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CEO ClayDesk

Syed Raza

Can ‘Predictive Coding’ cope up with ‘Big Data?

Discovery has changed, and electronically stored information (ESI) was the facilitator. Though ediscovery matters are no longer the novel issues that they once were,” technology is constantly changing. According to Baseline, it was estimated that 90 percent of worlds data has been created in the last two years.  in 2009 there were 988 Exabyte of data in existence, an amount that would stretch from the Sun to Pluto and back in paper form. The problem for corporations is the storage of huge amounts of data – let alone worry about the ‘compliance monster’.

Perhaps, cloud computing is here to ease things out, yet companies are retaining more information than ever, and lawsuits sometimes require attorneys review millions and millions of documents. While Judiciary struggles to devise effective mechanism regarding proportionality rules, big data is growing even bigger – not to mention growing litigation industry. It seems manual review of documents is not an option anymore, as technology is rushing towards meeting the growing needs of document review.

The most important element overlooked is the fact that human eyeballs are still required to review such documents leading to defensibility of the case; after all, isn’t that the real objective?

Definitions of “predictive coding” vary, but a common form of predictive coding includes the following steps. First, the data is uploaded onto a vendor’s servers. Next, representative samples of the electronic documents are identified. These “seed sets” can be created by counsel familiar with the issues, by the predictive coding software, or both. Counsel then review the seed sets and code each document for responsiveness or other attributes, such as privilege or confidentiality. The predictive coding system analyzes this input and creates a new “training set” reflecting the system’s determinations of responsiveness. Counsel then “train” the computer by evaluating where their decisions differ from the computers and then making appropriate adjustments regarding how the computer will analyze future documents.

This process is repeated until the system’s output is deemed reliable. Reliability is determined by statistical methods that measure recall—the percentage of responsive documents in the entire data set that the computer has located—and precision—the percentage of documents within the computer’s output set that are actually responsive. (That is, “recall” tests the extent to which the predictive coding system misses responsive documents, while “precision” tests the extent to which the system is mixing irrelevant documents in with the production set.) The resulting output can be either produced as is or further refined by subsequent human review. Subsequently, attorneys review a much smaller set of documents. Predictive coding therefore effectively “alleviates the need to review whole masses of records in order to find the relevant few.” Most importantly, predictive coding is estimated to reduce ediscovery costs as much as 40% to 60% while maintaining search quality.

A statistic quoted in an IDC and EMC report says that the digital universe is doubling every two years, and will reach 40,000 Exabyte (40 trillion gigabytes) by 2020. The question is: Can predictive coding cope up with big data?


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Managed Review vs. Staffing Model

There are two standing industry models for outsourcing e-discovery document review projects – the managed review and the staffing model. While selecting a review solution – either staffing of managed, the solution should reflect an approach suffused in an understanding of applied best practices. Having said that, the following sets forth a minimal, standardized, framework which can and should be adapted to meet the needs of specific cases.

Project management

· Ensure a project plan is specifically designed and crafted to the specifications and requirements of counsel

· consistent with best practices

· Deliver a key set of documents or review protocol that govern the execution and project

· management of the review process along with workflow design

Team selection and training

· Staff personnel with expertise in specific area of laws relating to project. Develop specific job descriptions and define a detailed protocol for recruiting, testing, and selection

· Ensure conducive environment as well as conduct reference and background checks

· Preferably engage experienced personnel

· Ensure the review team receives comprehensive substantive and platform training

Workflow

· Design processes, assignments and quality assurance steps specifically tailored to the project’s requirements

· Demonstrate compliance with key security and quality standards while maintaining acceptable pace

Quality control

· Adhere to six sigma principles

· Develop effective quality control processes to achieve key project goals

· Test first review work product using sampling method, targeted re-review, and validations searches

· Conduct statistics to ensure the highest quality end result

· Maintain auditing and track performance of reviewers

Communication

· Develop a formal schedule of communications with counsel adhering to laid down schedules

· Calibrate initial review results, seeking counsel’s guidance to confirm or correct results and to conform review protocol and training materials to insights gained

Reporting

· Deliver regular, comprehensive reports to monitor progress and quality and to assist counsel in managing the review process

Productions and Privilege Logs

· Prepare privilege logs in accordance with specifications set by counsel

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managed-review

E-Discovery in common law jurisdictions

PAKISTAN AND INDIA

Relevant e-Discovery sections of law in Code of Civil Procedure – Pakistan

SUMMONS AND DISCOVERY

25. Where a suit has been duly instituted, a summons may defendants, be issued to the defendant to appear and answer the claim and may be served in manner prescribed.

28.-(1) A summons may be sent for service in another summons. Province to such Court and in such manner as may be prescribed by rules in force in that Province.

(2) The Court to which summons is sent shall, upon another receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue together with the record (if any) of its proceedings with regard thereto.

29. Summonses 2[and other processes] issued by any Civil or

Revenue Court situates 1[outside] 2[Pakistan] may be sent to the Courts 3[in] 4[Pakistan] and served as if they 5[were summonses] issued by such Courts:

6[Provided that the Courts issuing such summonses [or processes] have been established or continued by the authority of the Central Government or that the Provincial Government [of the Province in which such summonses or processes are] to be served has by notification in the official Gazette declared the provisions of this section to apply to 10 [such Courts.]

Subject to such conditions and limitations as may be prescribed, the Court may, at any. time, either of its own motion or on the application of any party: –

(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;

(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;

(c) Order any fact to be proved by affidavit.

31. The provisions in sections 27, 28 and 29 shall apply to summonses to give evidence or to produce documents or other material objects.

32. The Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may-

(a) issue a warrant for his arrest;

(b) attach and sell his property; (c) impose a fine upon him not exceeding [two thousand] rupees;

(d) Order him to furnish security for his appearance and in default commit him to […..] prison.

ORDER XI

DISCOVERY AND INSPECTION

1. In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite-parties or any one or more of such parties, and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer: Provided that no party shall deliver more than one set of interrogatories to the same party without any order for that purpose: Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

2. On an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the Court. In deciding upon such application, the Court shall take into account any offer, which may be made by the party sought to be interrogated to deliver particulars or to make admissions or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the Court shall consider necessary either for disposing fairly of the suit or for saving costs.

3. In adjusting the costs of the suit inquiry shall at the instance of any party be made into the propriety of exhibiting such interrogatories and if it is the opinion of the taxing officer or of the Court, either with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the costs occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault.

4. Interrogatories shall be in Form No.2 in Appendix C with such variations as circumstances may require.

5. Where any party to a suit is a corporation or a body of persons, whether incorporated or not, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite-party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation or body, and an order may be made accordingly.

6. Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, or on any other ground, may be taken in the affidavit in answer.

7. Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary or scandalous; and any application for this purpose may be made within seven days after service of the interrogatories.

8. Interrogatories shall be answered by affidavit to be filed within ten days, or within such other time as the Court may allow.

9. An affidavit in answer to interrogatories shall be in Form No.3 in Appendix C, with such variations as circumstances may require.

10. No exception shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court.

11. Where any person interrogated omits to answer, or answers insufficiently, the party interrogating may apply to the Court for an order requiring him to answer or to answer further, as the case may be. And an order may be made requiring him to answer or answer further, either by affidavit or by viva voce examination, as the Court may direct.

12. Any party may, without filing any affidavit apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion, be brought fit: Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

13. The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made shall specify which (if any) of the documents therein mentioned he objects to produce, and it shall be in Form No.5 in Appendix C with such variations as circumstances may require.

14. It shall be lawful for the Court at any time during the pendency of any suit, to order the production by any party thereto, upon oath, of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.

15. Every party to a suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document, to produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse which the Court shall deem sufficient for not complying with such notice, in which the Court may allow the same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit.

16. Notice to any party to produce any documents referred to in his pleading or affidavits shall be in Form No.7 in Appendix C, with such variations as circumstances may require.

17. The party to whom such notice is given shall, within ten days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof a which the documents, or such of them as he does not object to produce, may be inspected at the office of his pleader, or in the case of bankers’ books or other books of account or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice shall be in Form No.8 in Appendix C, with such variations as circumstances may require.

18.-(1) Where the party served with notice under rule 15 omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his pleader, the Court may, on the application of the party desiring it make an order for inspection in such place and in such manner as it may think fit: Provided that the order shall not be made when and so far as the Court shall be of the opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

(2) Any application to inspect documents, except such as are referred to in the pleadings, particulars or affidavits of the party against whom the application is made or disclosed in his affidavit of documents, shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them and that they are in the possession or power of the other party. The Court shall not make such order for inspection of such documents when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

19 – (1) Where inspection of any business books is applied for the Court may, if it thinks fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations or alterations; Provided that, notwithstanding that such copy has been supplied the Court may order inspection of the book from which the copy was made.

(2) Where on an application for an order for inspection privilege is claimed for any document it shall be lawful for the Court to inspect the document for the purpose of deciding as to the validity of the claim of privilege.

(3) The Court may, on the application of any party to a suit at any time, and whether an affidavit of documents shall or shall not have already been ordered or made, make an order requiring any other party to state by affidavit whether any one or more specific documents, to be specified in the application, is or are, or has or have at any time been in his possession or power, and, if not then in his possession, when he parted with the same and what has become thereof. Such application shall be made on an affidavit stated that in the belief of the deponent the party against whom the application is made has, or has at some time had, in his possession or power the document or documents specified I the application, and that they relate to the matters in question in the suit, or to some of them.

20. Where the party from whom discovery of any kind or inspection is sought objects to the same, or any part thereof, the Court may, if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the suit, or that for any other reason it is desirable that any issue or question in dispute in the suit should be determined before deciding upon the right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.

21. Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defend, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and an order may be made accordingly.

22. Any party may, at the trial of a suit, use in evidence any one or more of the answers or any part of an answer of the opposite-party to interrogatories without putting in the others or the whole of such answer: Provided always that in such case the Court may look at the whole of the answers, and if it shall be of opinion that any others of them are so connected with those put in that the last-mentioned answers ought not to be used without them, it may direct them to be put in.

23. This order shall apply to minor plaintiffs and defendants, and to the next friends and guardians for the suit of persons under disability.

INDIA

Relevant e-Discovery sections of law in Code of Civil Procedure – India

30. Power to order discovery and the like.

Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party,-

(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;

(b) Issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;

(c) Order any fact to be proved by affidavit.

ORDER XI-DISCOVERY AND INSPECTION

1. Discovery by interrogatories— In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer: Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose : Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

1. Particular interrogatories to be submitted— on an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the Court. In deciding upon such

2. application, the Court shall take into account any offer, which may be made by the party sought to be interrogated to deliver particulars, or to make admissions, or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the Court shall consider necessary either for disposing fairly of the suit or for saving costs.

2. Costs of interrogatories— In adjusting the costs of the suit inquiry shall at the instance of any party be made into the propriety of exhibiting such interrogatories, and if it is the opinion of the taxing officer or of the Court, either with or without an application for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the cost occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault.

3. Form of interrogatories. — Interrogatories shall be in Form No. 2 in Appendix C, with such variations as circumstances may require.

4. Corporations— Where any party to a suit is a corporation or a body of persons, whether incorporated or not, empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may apply for an order allowing him to deliver interrogatories to any member or officer of such corporation or body, and an order may be made accordingly.

5. Objections to interrogatories by answer— Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, [167] [or on the ground of privilege or any other ground], may be taken in the affidavit in answer.

6. Setting aside and striking out interrogatories— Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary or scandalous; and any application for this purpose may be made within seven days after service of the interrogatories.

7. Affidavit in answer, filing— Interrogatories shall be answered by affidavit to be filed within ten days or within such other time as the Court may allow.

8. Form of affidavit in answer— an affidavit in answer to interrogatories shall be in Form No. 3 in Appendix C, with such variations as circumstances may require.

9. No exception to be taken— No exceptions shall be taken to any affidavit in answer, but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court.

10. Order to answer or answer further— where any person interrogated omits to answer, or answer insufficiently, the party interrogating may apply to the Court for an order requiring him to answer, or to answer further, as the case may be. And an order may be made requiring him to answer or answer further, either by affidavit or by viva voice examination, as the Court may direct.

11. Application for discovery of documents— Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit :

12. Affidavit of documents— The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which (if any) of the documents therein mentioned he objects to produce, and it shall be in Form No. 5 in Appendix C, with such variations as circumstances may require.

13. Production of documents— It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.

14. Inspection of documents referred to in pleadings or affidavits— Every party to a suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document [168][or who has entered any document in any list annexed to his pleadings] or produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse with the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs an otherwise as the Court shall think fit.

15. Notice to produce— Notice to any party to produce any documents referred to in his pleading or affidavits shall be in Form No. 7 in Appendix C, with such variations as circumstances may require.

16. Time for inspection when notice given— The party to whom such notice is given shall, within ten days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his pleader, or in the case of bankers books or other books of account or books in constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any) of the documents he objects to produce, and on what ground. Such notice shall be in Form No. 8 in Appendix C, with such variations as circumstances may require.

17. Order for inspection— (1) Where the party served with notice under rule 15 omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere than at the office of his pleader, the Court may, on the application of the party desiring it, make an order for inspection in such place and in such manner as it may think fit :

Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

Provided that the order shall not be made when and so far as the Court shall be of opinion that, it is not necessary either for disposing fairly of the suit or for saving costs.

(2) Any application to inspect documents, except such as are referred to in the pleadings, particulars or affidavits of the party against whom the application is made or disclosed in his affidavit of documents, shall be founded upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect them, and that they are in the possession or power of the other party. The Court shall not make such order for inspection of such documents when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.

19. Verified copies— (1) Where inspection of any business books is applied for, the Court may, if it thinks fit, instead of ordering inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries, and such affidavit shall state whether or not there are in the original book any and what erasures, interlineations or alterations:

Provided that, notwithstanding that such copy has been supplied, the Court may order inspection of the book from which the copy was made.

(2)

Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful for the Court to inspect the document for the purpose of deciding as to the validity of the claim of privilege [169] [unless the document relates to matters of State.]

(3)

The Court may, on the application of any party to a suit at any time, and whether an affidavit of documents shall or shall not have already been ordered or made, make an order requiring any other party to state by affidavit whether anyone or more specific documents, to be specified in the application, is or are, or has or have at an time been, in his possession or power, and , if not then in his possession, when he parted with the same and what has become thereof. Such application shall be made on an affidavit stating that in the belief of the deponent the party against whom the application is made has, or has at some time and, in his possession or power the document or documents specified in the application, and that they relate to the matters in questions in the suit, or to some of them.

1. Premature discovery— Where the party from whom discovery of any kind or inspection is sought objects to the same, or any part thereof, the Court may if satisfied that the right to the discovery or inspection sought depends on the determination of any issue or question in dispute in the suit, or that for any other reason it is desirable that any issue or question in dispute in the suit should be determined before deciding upon the

2. Right to the discovery or inspection, order that such issue or question be determined first, and reserve the question as to the discovery or inspection.

2. Non-compliance with order for discovery— [170][(1)] Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and [171][an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.]

[172] [(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.]

1. Using answers to interrogatories at trial— Any party may, at the trial of a suit, use in evidence any one or more of the answers or any part of an answer of the opposite party to interrogatories without putting in the others or the whole of such answer : Provided always that in such case the Court may look at the whole of the answers, and if it shall be of opinion that any others of them are so connected with those put in that the last-mentioned answers ought not to be used without them, it may direct them to be put in.

2. Order to apply to minors— This Order shall apply to minor plaintiffs and defendants, and to the next friends and guardians for the suit of the persons under disability.

Sources: http://www.ma-law.org.pk/pdflaw/CODE%20OF%20CIVIL%20PROCEDURE%201908.pdf; http://www.wipo.int/wipolex/en/text.jsp?file_id=201630

e-Discovery | cloud computing

New Jersey, USA | Lahore, PAK | Dubai, UAE

info www.claydesk.com

(855) – 833 – 7775 (703) – 646 – 3043

E-Discovery: Document review value proposition you don’t want to miss!

The biggest cost driver in e-discovery is the document review part, where millions and millions of documents must be reviewed for potential relevancy and/or responsiveness. KPMG estimates that first level document review encompasses anywhere between 58% and 90% of total litigation costs. While predictive coding technologies have been somewhat successful in culling down most of the documents by utilizing an optimal combination of ‘recall’ and ‘precision’ values, human eyes are still required. Attorneys, senior paralegals power up review centers specifically designed for such projects only to find repetitive work day in day out – resulting in high turnover.

Typically, teams are rounded up and dismantled on an as-needed basis using attorneys, paralegals and law school graduates. This, in turn, has created a ‘day laborer’ mentality, as most projects are short term in nature, anywhere from a few days to months. Therefore, it is not uncommon for document review teams to start with 30 to 50 individuals, and during the course of the project to lose over half of the original members. With costs and inconsistencies in mind, high document reviewer turnover has not only affected the consistency of first level document review projects, but has led to an inefficient model of ‘training and re-training’, consequently resulting in escalation of costs.

Presently, though, due to influx of attorney workforce, pay rates have been seen to take a downward turn – a simple supply and demand situation.

The overall costs, however, remain high due to advent of ‘Big Data’. The question remains: How do you further reduce costs? There is good news!

Let me illustrate savings for a law firm or corporation in a simple hypothetical scenario:

For a 100 GB project (approx. 15,000 docs/GB – source edrm.net), we are talking approx. 1.5 million docs @$40/hour or $.80 per document (assuming 50 docs reviewed per hour – source edrm.net). Total billing = $1.2 million. With offshore attorney rate @$20/hour or $.40 per document. Total billing = $600K

Savings for the law firm of corporation by 50%, that is, save $600K – flat!

One can only imagine the cost savings in much larger engagements. These savings provide additional value and act as supplement to the predictive coding technology – together they form a true win-win solution for clients.

e-Discovery | cloud computing

New Jersey, USA | Lahore, PAK | Dubai, UAE

info www.claydesk.com

(855) – 833 – 7775 (703) – 646 – 3043

Why Collect Metrics in the Review Stage?

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Document review, generally acknowledged as the costliest component of e-discovery also involves the greatest coordination among a number of participants (in-house counsel, the outside law firm, the review platform vendor, and the staffing vendor).  As the collected ESI has been processed and uploaded into the review system, LitSpecialists will start the review.  Documents will be reviewed for their relevancy and coded as to responsiveness or reasons for being withheld entirely or in part from production.  The client and Eagan & Escher are eager to assess the number and content of documents to be produced.  The review is also under a complex schedule and a closely-watched budget.  LitSpecialists will provide progress reports monitoring review rates, to manage expectations and to keep the review team on target, and document statistics, to project the time and cost of production.

The use of metrics in the Review Stage ensures deadlines are met, tracks the cost of the review and helps prepare for production.  But beyond those short-term goals, consistent capture and use of review metrics can establish baselines for projecting timeframes and budgets, as well as preferred review platforms and review team composition.

What Needs to be Measured in the Review Stage?

The metrics for Review are derived from both the review platform and the reviewers.

  • Pre-Review Metrics: Describe the size and composition of the dataset to be reviewed, including foreign languages, image files, media type, and spreadsheets, the size and composition of the review team, and the timeframe of the review;
  • Ongoing Review Metrics: (during a review) Include: the hours worked (billed) by the reviewers; the hours logged on the review platform by the reviewers; average hours worked and logged; number, type and average number of documents/pages coded ; the number/percentage of documents checked for accuracy (QC); the documents unable to be reviewed; any non-viewable documents/pages; error rates; review exceptions; and any system downtime;
  • Post Review Metrics: Describe the aggregate of documents loaded (the original dataset, plus additional files loaded during the course of the review); total hours necessary for the review; average review rates for the team/reviewers; total documents/pages reviewed; totals of categories (e.g., Responsive, Non-Responsive, Privileged, Confidential, Further Review, Not Viewable); total downtime.

Source: EDRM

ClayDesk adopts strict quality controls procedures while fully adopting the guidelines, rules, and procedures. Our goal is to bring review costs to a minimum without compromising on quality – making outsourcing simple! Contact us at info@claydesk.com or call us at (855)-833-7775 for your next offshore we based review by our US licensed attorneys and LLM’s.

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e-Discovery | cloud computing
New Jersey, USA | Lahore, PAK | Dubai, UAE
info@claydesk.com       www.claydesk.com

Preservation, Forensics, Analysis, Culling, Processing (PFACP)

ClayDesk is a niche player in the market, providing e-Discovery and cloud computing solutions. Our e-Discovery services cover the entire EDRM cycle including information governance and compliance. Having JD’s and LLM’s as part of our core team, our onshore/offshore document review capabilities are unmatched in the industry.

Digital Preservation & Forensics

ClayDesk’s Forensics division provides professional expertise to assist your organization in all aspects of forensic data preservation, investigations, and data format conversions. Our staff of digital evidence examiners is composed of experts in the collection, analysis, and conversion of data from virtually all types of data storage devices, including:

  •        Desktop and laptop computers
  •        Network-based servers and storage devices
  •        Cell/smart phones and PDAs
  •        iPods and other types of external media storage devices
  •        Backup tapes

Analysis and Culling

With our portable early case assessment tools and experienced investigators, we have been able to collect and preserve data internationally, while complying with stringent foreign data restrictions and privacy regulations.

Key Benefits:

  • Accelerate early case assessments from weeks to hours
  • Lower processing cost and increase turnarounds by up to 85%
  • Process large volumes of data 8-10 times faster
  • Reduce review workload by up to 90%
  • Wrap up investigations 10 times faster
  • Increase defensibility and control of e-discovery

ESI Processing

At ClayDesk, we pride ourselves on our ability to keep up with the changing legal landscape. As a result, we know how important it is for companies to properly manage ESI. E-discovery budgets have increased significantly in the last few years because there is simply more data to analyze. Amendments to the Federal Rules of Civil Procedure have also had a direct impact on companies facing litigation, forcing them to take more proactive steps to preserve their ESI.

We provide our clients with comprehensive solutions for ESI processing. With worldwide production centers working around the clock, ClayDesk can quickly turn around large amounts of data in a matter of days. We have the ability to process data in-house or – if needed – to work on-site to convert files for processing. Our skilled ESI specialists will work with you to create a customized e-discovery plan that fits your needs. Contact us for more information.

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