US eDiscovery articles in brief

Consistent with my condensing approach to current events, I give a brief summary of some of the US articles which have ended up in my Evernote store while my attention has been on the roll-out of the Jackson reforms. Rule changes and predictive coding remain at the top of the agenda. The best service I can do is simply to point to some of them.

Judge Peck’s refusal to recuse in Da Silva Moore remains after appeal

The title of this LTN article, Judge Peck’s Refusal to Recuse in ‘Da Silva Moore’ Remains After Appeal says all you need to know. A crisp opinion from the US Court of Appeals finally disposes of the recusal sideshow to the predictive coding sideshow, leaving the parties free at last to focus on the merits of the case. The LTN article helpfully includes links to some of the articles which told the story as it unfolded.

How good is your predictive coding poker face?

A two-part article by Matthew Nelson of Symantec introduces segments of video in which Maura Grossman, Craig Ball, Ralph Losey and Matthew Nelson discuss various aspects of the use of predictive coding by reference to a poker game. The articles are called How Good is Your Predictive Coding Poker Face? Part One and Part Two. These are authoritative speakers and this is an interesting way of serving up some of the issues and recommending approaches to them.

Technology assisted review: unlocking the black box

A helpful article by Randall Burrows of Xerox Litigation Services is headed The next step for technology assisted review: unlocking the black box. Its subtitle, A step-by-step approach to establishing a more defensible methodology, is fulfilled by a straightforward guide to the support which a lawyer can bring to bear on the validation of his or her approach to the use of technology assisted review and, by implication, to challenging the approach taken by opponents.

Changes to ABA Model Rules

Matthew Nelson is also the author of an article headed New changes to Model Rules a wake-up call for technologically challenged lawyers. There is an assumption by UK lawyers that their US brethren somehow spring fully-formed into an understanding of technology, a misconception I shared myself until I met a few.

The ABA’s Model Rules reflect what ought to be obvious in any jurisdiction – the professional duty of competence must include an obligation to understand enough about eDiscovery technology to advise clients properly and to fulfil one’s duties to the court.

Prospective changes to the FRCP eDiscovery Rules

It is not only the Model Rules which are changing. The Federal Rules of Civil Procedure are facing amendments. The best summary of the prospective changes which I have seen is by Bob Ambrogi on the Catalyst E-Discovery Search Blog. Called New Federal E-Discovery Rules Move a Step Closer to Fruition, it sets out changes which show that the rule-makers of the US and of England and Wales have broadly similar objectives, albeit from very different starting-points. The focus is on proportionality, cooperation, greater specificity in making objections, early case management and moves towards uniformity of sanctions. The latter may contain what has hitherto been a moving target, which lawyers try to hit, inevitably, by aiming wide in all directions.


Anyone who is involved with electronic data (which is all of us) have to be aware of the growing threats which are grouped together under the heading cybersecurity. What matters to clients ought to matter to their lawyers, and Daniel Lim of Guidance Software has written A cybersecurity primer for legal departments, whose sub-title Understanding the basic terms and concepts needed to protect your company from cyber attacks accurately describes its contents.

There are many more, and this selection is just that – a selection. They have been picked in part because their subject-matter has relevance beyond the US jurisdiction for which they were written.


About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Catalyst, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Guidance Software, Symantec. Bookmark the permalink.

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