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Law & Forensics.com
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Solving problems in digital forensics, e-discovery, and cyber security: creative solutions at the convergence of technology and the law.
Solving problems in digital forensics, e-discovery, and cyber security: creative solutions at the convergence of technology and the law.

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The modern world of Corporate America runs on email and web-based applications; consequently, employees of Corporate America are continuously sending emails, at all hours of the day and night, using their corporate email accounts. These emails, which must be automatically archived by the corporation in order to remain in compliance with data management regulations, frequently end up creating costly problems. 

Emails, social media posts and texts—the amount of data can be endless, creating potential problems for companies in industries large and small. A panel taking place on Tuesday, Feb. 4, at ALM’s LegalTech New York, entitled “Minimizing Cybersecurity and Litigation Risk While Optimizing the Benefits of Mobile Technology and Social Media in the Workplace,” examines the impact that today’s ever-expanding world of data is having on legal departments. (ALM is the parent company of Corporate Counsel.)

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With the widespread permeation of advanced technology into our daily lives, it is inevitable that the products of those technologies, i.e., digital information, will make their way into the courtroom. This has largely occurred in the form of electronic discovery, or e-discovery, where each party involved in the case provides the relevant information they possess. 

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Many in the blogosphere and e-discovery community thought Da Silva (Da Silva Moore v. Publicis Groupe & MSL Group. 11 Civ. 1279 (S.D.N.Y. Feb 24, 2012)) would lay the foundation upon which Kleen Products (link to most recently available transcripts) (Kleen Products LLC v. Packaging Corporation of America et al.,No. 10 C 5711) and Magistrate Judge Nolan could follow. But what was supposed to be a clean exit for predictive coding has turned into muddy waters since the plaintiffs in Da Silva Moore have entered a second brief in response to Magistrate Judge Peck’s written opinion. In Da Silva, both parties began with a mutual interest in predictive coding, but the mandate handed down in Peck’s oral opinion and the subsequent written opinion was not agreeable to the plaintiffs. Plaintiffs’ brief to District Judge Carter called into question the underlying technology.  It also questioned the ability of Magistrate Judge Peck to advocate for a particular method of electronic discovery, which for the record, I believe is without merit.

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Judge Carter published his opinion (1:11-cv-01279-ALC-AJP) in Monique da Silva Moore, et al. v. Publicis Group SA, et al. (hereinafter “Da Silva”).

In the opinion, Judge Carter affirmed Magistrate Judge Peck’s order approving (and arguably outright advocating for) the use of predictive coding, if both parties elect to use it.  The bottom line is that predictive coding is not going to be banished from the judicial cannon.

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Discovery mediation is an emerging field of the law and will certainly change and evolve in the months and years to come.  However, the following practitioner points should be a valuable resource to counsel when weighing the benefits of discovery mediation.
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