When we begin to talk of e-discovery, clients begin to groan, heads begin to nod and we’re inevitably told “this is just too hard.”  E-discovery is indeed hard and the SDNY is making it harder by the day in two notable decisions – both of which seem to raise the burden and cost of e-discovery.  The good news for clients/insurers/attorneys is that e-discovery tends to only be an issue in large commercial, mass tort or discrimination disputes.

In the case of Pippins v. KPMG, KPMG allegedly improperly denied overtime wages to some of its employees.  During the course of a discovery battle, KPMG filed a protective order in which it asked the court to order that it only had to produce a “random sampling of a small number of hard drives” as opposed to preserving/imaging all former employee hard drives.  The court initially asked KPMG to produce at least 1 hard drive so the court could determine whether random sampling would be sufficient or if imaging was required.  KPMG effectively refused and it appears that this made Judge McMahon less than happy.  She has now ruled  that KPMG must preserve all hard drives, without exception, as the “hard drives are likely to contain relevant information.”  This is surely an onerous obligation and we/you will no doubt be seeing many citations to this quote in our/your future e-discovery battles.

In the case of Moore v. Publicis, Publicis, a large PR company, was charged with gender discrimination.  In the context of discovery, Judge Peck was tasked with the problem of figuring out how to search through thousands of documents so that only relevant ones could be produced.  Judge Peck, who does not like keyword searches, instead decided to have the parties employ “predictive coding” technology.   The formal order has now been issued.  To our mind predictive coding is just another way of saying “very expensive.”

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