The buzz in the eDiscovery world has focused on predictive coding and the related order issued last month in the Da Silva Moore v. Publicis Groupe case. Yet in that order, the Moore court emphasized that predictive coding would not become the exclusive tool for eDiscovery. The strong inference from the Moore case was that organizations should be prepared to deploy any number of tools in addition to predictive coding technology to effectively and efficiently address discovery obligations. To ignore these other weapons in the litigator’s arsenal would be to put the client’s case at risk.
This point was emphasized last month in a Wasted Costs Order originating from the United Kingdom. In West African Gas Pipeline Company Limited (WAPCo) v. Willbros Global Holdings Inc., the High Court ordered the claimant to pay the defendant a minimum of £135,000 after finding the claimant “failed to provide proper disclosure” under the Civil Procedure Rules. A subsequent hearing was also held to determine the additional costs the claimant must pay to address its shortcomings in discovery (called “disclosure” in the UK).
The principal basis for the High Court’s Civil Procedure Rule 44.3 cost order was the claimant’s failure to properly deduplicate documents. As the court observed, “a significant proportion of duplicates had not been removed,” which was due to “a problem with the de-duplication process.” In rendering its order, the court concluded that: “Whilst I accept that de-duplication of electronic documents has a number of technically complex facets, if appropriate software is properly applied it can remove multiple copies of the same or similar documents.”
As renowned eDiscovery thought leader Chris Dale recently observed in a post regarding this issue, a deduplication failure in 2012 might rightfully be perceived as either old news or even small potatoes. Yet just like Judge Peck’s order in Moore v. Publicis Groupe, the WAPCo case emphasizes the significance of deploying the right tools to meet the challenges of eDiscovery on either side of the Atlantic Ocean. That UK “firms [are] scared witless by the West African Gas Pipeline judgment,” as Mr. Dale observes, gives additional credence to this point.
For law firms looking to better address these issues, there are any number of technologies and vendors that can help provide answers. For most firms, efficient search and analysis tools are probably the best bet for properly reducing the amount of potentially relevant information that must be reviewed prior to production. Others may be ready in the near future for the more advanced features of predictive coding technology. Either way, having the right combination of eDiscovery technologies to support an intelligent litigation response effort will more likely yield successful results in litigation.