Soon to be retired U.S. Magistrate Judge Andrew Peck of the Southern District of New York will leave the federal bench as one of its most vocal and experienced e-discovery adjudicators. But just how much has e-discovery changed during his time on the bench?

At the Benjamin N. Cardozo School of Law event “From DaSilva Moore to Microsoft: The Jurisprudence of Judge James Francis IV and Judge Andrew Peck,” Peck was joined by retired Magistrate Judges Frank Maas of the U.S. District Court for Southern District of New York, Ron Hedges (of the U.S. District Court for the District of New Jersey) and James Francis to discuss how the e-discovery landscape has evolved over their careers, and what rulings and issues are still being debated today.

David Horrigan, e-discovery counsel at Relativity, was the moderator. The event was sponsored by Relativity and the Association of E-Discovery Specialists (ACEDS).

From debating the place of technology assisted review (TAR), the use of software for document classification based on expert input, to how closely federal judges should manage e-discovery production, here are highlights from the session:

Keyword Snafu

The use of keyword searches in e-discovery was meant to help practitioners efficiently find relevant documents within datasets. But its usefulness depends on how broadly or narrowly keywords are applied. And back in the early days of keyword search, attorneys were regularly struggling to strike the right balance.

“No one knew how to do search back in [2009]. it was like the blind leading the blind, unless you had some background on how to do searches,” Hedges said.

Francis recalled a case he oversaw where “parties utilized keywords, and one of the keywords that they used was 'Z,' because the project that they were concerned about was codenamed 'Project Z'. So their search returned every document that contained the letter 'Z.' That was sort of emblematic of how naive parties were at that time.”

Maas, however, “had the other extreme,” in one of his past cases: a party that performed a keyword search only using one word.

“When I suggested that was an inadequate search, I got a letter back saying it was overbroad,” he said.

TAR's Place in Law

In Rio Tinto PLC v. Vale SA, Peck ruled that it is “black letter law” that if a party wants to use TAR, the court will allow it. But some judges aren't so sure.

“Courts don't care what you do, as long as you do what you're supposed to do, which is respond to requests for production,” Hedges said. “Is it black letter law? … No. But is it done? Sure, just like everything else is done.”

Peck, however, argued that it was necessary for the court to give its stamp of approval to TAR as an adequate search tool parties can use. What if a federal judge “is presented with a fight where the responding party says, 'I want to use TAR in this case,' and the other side says, 'I don't trust the black box, I don't trust these guys on the defense side, they are going to cheat and game the system?'” he asked.

“My answer would be do what you're going to do, and then the other side can come back and tell me what's wrong,” Hedges responded. “I would also require that party objecting to come in with witness … that says something is wrong. The biggest problem in this area is that lawyers open their mouths, and they don't know what they are talking about with technology.”

To be sure, TAR has been viewed and treated differently than keyword searches because some attorneys are reluctant to rely too much technology. But such a stance strikes Maas as naive. “A computer never got tired after lunch, never had a drinking problem that could interfere with its ability to find responsive documents,” he said.

Still, there may be tangible reasons that parties may not want to use TAR.

“I also sympathize with the later adopters,” Francis said. “If this is about the company case and they've never used TAR before and they have to report to their CEO when things go wrong because of TAR, then I understand why they don't utilize it.”

Into the Weeds?

Not all federal judges are as well-versed on the intricacies of e-discovery production and technology as Francis and Peck. But should they be?

“Federal judges are trained to be active case managers. That is what we are expected to do,” Hedges said. He noted that the 2015 amendments to the Federal Rules of Civil Procedure addressing e-discovery were intended “to foster cooperation” between parties and judges, because “judges really don't have much time for parties fighting battles that really should not be fought.”

Yet Francis argued that being more active in managing how e-discovery processes can be a panacea to overburdening judges with e-discovery disputes in the first place. “Both for the sake of the parties and for my own sake, because they will come back to me with their problems after it is blown up, the idea of active case management is very appealing,” he said.

Most judges, however “are just not used to getting into the weeds” in discussing e-discovery issues with their parties, he said.  “But I think that mindset is changing.”