http://ow.ly/9T7d4
An article by ACEDS staff posted on the aceds.org website.
This article discusses the plaintiff's objections to the order by U.S. Magistrate Judge Andrew J. Peck, in which he sought a protocol for the use of predictive coding in the da Silva v. Moore case. The article states that a portion of the plaintiff's objections to the ruling focused on allegedly improper ex-parte communications that took place between Ralph Losey, Esq., e-Discovery advisor for the defendants in that matter, and Judge Peck.
The article states, "Losey, a frequent speaker at e-discovery conferences and seminars, has been the defendants’ e-discovery advisor in the case since at least June 2011, when the parties held their first discovery telephone call.
The plaintiffs say that while the case has been in progress, Peck appeared jointly with Losey on January 18 in Charlotte, North Carolina, at an event called “E-Discovery Judges in Charlotte,” which was sponsored by e-discovery vendor Nova Office Strategies. Federal magistrate Judges John Facciola and Paul Grimm also participated there. “Predictive coding was discussed at length,” the plaintiffs assert in their court filing.
Peck and Losey, along with lawyer Maura Grossman, of Wachtell, Lipton, Rosen & Katz, in New York, appeared together in a January 30, 2012, panel at the annual LegalTech Conference in New York. The plaintiffs say Peck and Losey promoted predictive coding during the panel, “Man v. Machine: The Promise/Challenge of Predictive Coding and Other Disruptive Technologies,” which Symantec sponsored.
The next day, on January 31, Peck moderated a panel at LegalTech, “Hot Topics in E-Discovery: Point/Counterpoint Discussion with Craig Ball and Ralph Losey.” Losey endorsed predictive coding during this panel, according to the plaintiffs’ court filing. BIA sponsored the panel.
The same day, Peck spoke on another LegalTech panel, “Judicial Perspectives on Technology-Assisted Review,” in which he promoted predictive coding and noted that unnamed defendants in a case before him “must have thought [they] died and went to heaven.” Losey did not participate in this panel..."
P.S. Joe Bartolo, one of the writers of this blog, was a participant in the event referenced in Charlotte. Although certainly predictive coding was discussed, the issue is here is did Mr. Losey ever discuss the specific case with Judge Peck, and Mr. Losey denies doing so. Mr. Losey is a published author and recognized expert in the area of eDiscovery. Hence is seems Mr. Losey is certainly within his rights to participate in educational forums pertaining to issues such as predictive coding, including those in which Judges are also participants.
I have a hard time finding fault with either Judge Peck or Ralph Losey on this. They are both thought leaders in the area of ESI matters and as such are frequent contributors and participants at conferences. To say Judge Peck's recommendation of a protocol regarding predictive coding was improper is a stretch at best. Without these industry leaders attending, learning and sharing thoughts at conferences the very complex matters regarding electronic discovery would be able to be understood only by the more seasoned firms and litigants. While anything is possible I choose to believe that both Judge Peck and Mr. Losey are experienced enough to not allow improper communications about an active case to occur.
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