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Court Praises Predictive Coding, Then Rejects It
Over the past few years, much ink has been spilled by judges, commentators, and e-discovery service providers opining on the merits and drawbacks of predictive coding. (As we noted in our article, “'Seed Set' Documents Should Not Be Discoverable,” 251 NYLJ 2 (Feb. 4, 2014), in which we provide background on predictive coding and review a number of judicial decisions on the topic, predictive coding, also often referred to as technology assisted review, is the use of computer-generated algorithms to supplement and extend the work of human reviewers in the discovery document review process.) Topics have included when predictive coding should and should not be used, which of the many competing predictive coding technologies and processes are best, whether predictive coding is more accurate than human review, and exactly how, if at all, predictive coding should be incorporated into discovery protocols.
In one of the best-known court battles over predictive coding, Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012), the court concluded that a judge could incorporate predictive coding into electronically stored information (ESI) protocols over the objection of one of the parties. But what happens when the parties have already agreed to an ESI protocol, which does not include predictive coding, and one party wants to change this protocol, over the objection of the other party, by incorporating predictive coding? Can one party unilaterally alter the method of discovery, or does the agreed-upon ESI protocol take precedence?
This is the question addressed by the court in Progressive Casualty Ins. v. Delaney, No. 2:11-cv-00678, 2014 WL 3563467 (D. Nev. July 18, 2014). In answering this question,'the court sheds light on the reasons why parties have been reluctant to accept predictive coding, the need for cooperation and transparency with one's adversary, the resulting risks of this cooperation, and highlights a key debate over best practices ' whether search terms can be used to first limit the universe of documents before predictive coding is employed.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Stranger to the Deed Rule
In 1987, a unanimous Court of Appeals reaffirmed the vitality of the "stranger to the deed" rule, which holds that if a grantor executes a deed to a grantee purporting to create an easement in a third party, the easement is invalid. Daniello v. Wagner, decided by the Second Department on November 29th, makes it clear that not all grantors (or their lawyers) have received the Court of Appeals' message, suggesting that the rule needs re-examination.