Magistrate Judge Peck, a widely recognized expert on e-discovery, published an opinion today approving a stipulated protocol for technology-assisted review of documents (or “TAR”). The opinion is notable because it contains a clear statement supporting a party’s right to choose TAR: “the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.” The opinion is also notable because it discusses one open issue in the TAR case law — the extent to which the parties must share information about their “seed” sets of documents — and because it attaches the parties’ protocol as guidance for practitioners. The key discussion is here:
Continue Reading Judge Peck Publishes, For Guidance to Practitioners, Parties’ Protocol for Technology-Assisted Document Review

In the RICO litigation Chevron has brought to challenge an allegedly fraudulent multibillion dollar judgment against it in Ecuador, Judge Kaplan today denied, without prejudice, the motion of Patton Boggs, counsel to certain Ecuadorian citizens trying to enforce the judgment, to quash a subpoena from Chevron. As we blogged before, Patton Boggs’s motion argued that compliance with the subpoena would cost between $6-8 million. Judge Kaplan found that it was likely Patton Boggs had discoverable material, including potentially material covered by the crime-fraud exception to attorney-client privilege, and that a wholesale quashing of the subpoena was not justified. He concluded that Patton Boggs’s concerns about the burden of compliance were best addressed after the parties determined the proper scope of the subpoena, and chided both sides for “extraordinary stubbornness” in not having attempted to negotiate terms in the first place:
Continue Reading Judge Kaplan Denies, Without Prejudice, Patton Boggs’s Motion to Quash Chevron Subpoena and Orders Parties to Confer “In Person”

In the RICO litigation Chevron has brought to challenge an allegedly fraudulent multibillion dollar judgment against it in Ecuador, Chevron has sought documents from Patton Boggs, counsel for Ecuadorian citizens (referred to as “Afectados”) trying to enforce the judgment. On Friday, Patton Boggs moved Judge Kaplan to quash the subpoena because of alleged “gamesmanship” and because Patton Boggs claims complying with the subpoena would cost $6-8 million and take over a year:
Continue Reading Patton Boggs Moves to Quash Chevron Subpoena That It Claims Would Cost $6-8 Million

Judge Schiendlin issued an opinion Friday in a FOIA case that was critical of the practice of having government workers collect documents from their files, without strict oversight from counsel. The opinion will likely be cited in discovery disputes because, as Judge Scheindlin notes, “much of the logic behind the increasingly well-developed caselaw on e-discovery searches is instructive in the FOIA search context” (and thus, presumably, vice versa). The government’s brief had argued, “[i]t is . . . unclear why custodians could not be trusted to run effective searches of their own files, a skill that most office workers employ on a daily basis,” to which Judge Scheindlin responded:
Continue Reading Judge Scheindlin Criticizes Unsupervised “Self Collection” of Documents