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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?
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.