On September 17, the U.S. Tax Court in Dynamo Holdings Ltd. P’ship v. IRS, 143 T.C. No. 9 added itself to the growing list of courts that have approved the use of predictive coding in litigation.

As we have previously noted, predictive coding or Technology Assisted Review (“TAR”) has increasingly been utilized in large scale document productions in a wide variety of litigation and government investigation matters. However, not all parties and authorities have embraced the use of TAR, perhaps due to litigation’s adversarial nature, or a latent fear that technological tools will somehow miss key documents that a manual document-by-document review would otherwise catch. As the body of cases and research articles grows, however, courts and academics have largely rejected these concerns in favor of the more efficient, less expensive, and, arguably, more accurate document discovery that predictive coding offers. Yet in many jurisdictions, the use of predictive coding in litigation still remains untested.
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After early concerns about the defending the results of the technology and whether courts would accept its use, Technology Assisted Review (“TAR”) has now entered the spotlight as an alternative to more traditional forms of document review. These technologies, commonly referred to as predictive coding, continue to win over both clients and counsel, who have

On October 1st, I attended an all-day series of presentations hosted by Huron Legal Institute and Sandpiper Legal LLP in New York, which included several leading federal jurists and well-regarded practitioners offering their insights.

The event featured five hypothetical cases covering a range of topics, with attorneys appearing before one of more of the judges to conduct a mock discovery conference or to argue motions. This structure proved to be an engaging means of discussing the issues, and the more astute members of the audience recognized that a couple of the scenarios were drawn from recent cases, including the Biomet case that I discussed a few months ago and Pippins v. KPMG, which we posted about last year. The format also played to the judges’ strengths, allowing them to tease out issues and express their opinions. While the discussion was “off the record”, I will discuss the overall themes and provide some highlights (without attribution) of the discussions of predictive coding and proposed amendments to the Federal Rules on proportionality and preservation.
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Earlier this month, I was a panelist on a webinar on Personal Jurisdiction From E-Communications: Social Media, Email, IM and Cloud Computing along with Mark McGrath of Sheppard Mullin.

Our panel focused on the evolving landscape of personal jurisdiction in the online world starting with the advent of the internet to leading up to the world of cloud computing.

We started with a discussion of how the Supreme Court’s core decisions still provide useful guideposts for this fact-intensive inquiry, even as the cases shift from the physical to the digital world. The discussion started with International Shoe, which was heralded as a watershed decision in its day in 1945, decided at the dawn of interstate commerce with individuals and goods traveling farther and faster than ever before, leaving a trail of disputes in their wake. From there, we took the audience on a brief tour of Worldwide Volkswagen, Asahi, McGee International, Calder v. Jones, and Burger King – all of which still affect the ways litigants frame their position and way the courts analyze the issue in terms of minimum contacts, foreseeability, and purposeful availment (among others).
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Ever since Magistrate Judge Peck’s decision last year in Da Silva Moore v. Publicis Groupe SA, 2012 WL 607412 (S.D.N.Y. Feb. 24, 2012), there has been an increasing stream of orders and opinions weighing in on the use (or proposed use) of predictive coding. With each opinion, a new wrinkle appears, further shaping how parties are conducting technology assisted review during discovery.

Last month, Judge Robert Miller Jr., of the United States District Court for the Northern District of Indiana, joined this group with his order in In Re: Biomet M2a Magnum Hip Implant Products Liability Litigation (MDL 2391). There he found reasonable the process that had been undertaken by defendant Biomet in a multi-district litigation, involving the use of keyword searches followed by predictive coding, despite complaints from the plaintiffs’ Steering Committee.
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On June 12, I will be serving a speaker for a webinar hosted by Stafford Publishing entitled “Personal Jurisdiction From E-Communications: Social Media, Websites, Email, IM and Cloud Computing.” Here is what we will be discussing:

The Internet has changed how courts view personal jurisdiction over defendants sued in a particular forum. Courts must now

If you are alleged to have bribed government agents outside the United States or pirated music and movies protected by the Copyright Act, then you may find yourself sitting in a federal court in Richmond, Virginia. Why? Various government agency servers are located in that court’s jurisdiction and evidence of your criminal activities may have passed through government servers or private servers located in that region.

As covered in my previous post, Cloud Computing, Social Media, and Other Internet-Based Data Transmissions Could Give Rise to Personal Jurisdiction in Distant Forums, the physical journey of internet transmissions has become a more prominent aspect of courts’ personal jurisdiction analyses, which has inevitably led to more lawsuits, both civil and criminal, involving foreign nationals. That previous post discussed a Canadian citizen being hailed to the District of Connecticut for possible trade secret violations on the basis that she accessed her former firm’s server in order to transfer documents. Another recent case from the Southern District of New York involved the Foreign Corrupt Practices Act (FCPA) and permitted the Securities Exchange Commission (SEC) to pursue its enforcement action against three Hungarian executives based upon the passage of emails through SEC servers in the US. See SEC v. Straub, No. 1:11-cv-09645 (S.D.N.Y., February 8, 2013).
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The Second Circuit’s decision in MacDermid, Inc. v. Deiter, No. 11-5388-cv (2d Cir., Dec. 26, 2012), highlights the fact that where an email goes can be as important as what it says. The court found that an employee’s knowing transmission of an email via a computer server located in Connecticut was a sufficient basis for a Connecticut court to exercise personal jurisdiction over that employee under the state’s long-arm statute. The decision suggests this is true regardless of the lack of other contacts with the forum state. The court’s analysis raises serious considerations in a world where data storage in the “cloud” is becoming increasingly common for individuals and businesses. Individuals transmitting electronic communications via servers located in far-away states—such as through Gmail®, Twitter®, FaceBook®, Yahoo®, wireless providers, and employer networks—could find themselves subject to personal jurisdiction in those states depending upon their respective long-arm statutes. The court did not have occasion to address whether the same principle would apply to a corporate defendant, but the court’s analysis suggests that companies with network or “cloud” servers located in states with which those companies otherwise have no significant contacts could find themselves subject to the jurisdiction of courts in those states.
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