Attorney-at-Law

TWO MYTHS

In Uncategorized on 07/13/2016 at 16:11

Judge Buch is playing myth-buster today in the ongoing Beekman Vista odyssey, Docket No. 8393-12, filed 7/13/16.

They’re still romping around with e-discovery, and IRS claims the Beeks haven’t come clean with all the goods, despite resuscitated tapes of quaint and curious volumes of forgotten lore, seed groups, and enough Boolean algebra to give even the nerdiest e-wonk indigestion. See my blogpost “Method to His Madness – Part Deux,” 9/17/14.

Two years into the program, and IRS is still claiming sandbagging.

IRS claims predictive coding didn’t predict what IRS wanted.

So we get the fight between precision (how many documents are scooped up by the coding, screening out “false positives”, that is, irrelevant stuff) and the extent of recall (the documents retrieved without “false negatives”, that is, leaving out relevant stuff).

IRS claims the Beeks didn’t get it perfect. The recall was too low, too much false negativity.

Yes, says Judge Buch, the predictive coding was flawed. So what?

There are two myths, as aforesaid.

First is human perfection. “Research shows that human review is far from perfect. Several studies are summarized in Nicholas M. Pace & Laura Zakaras, RAND Corp., Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery (2012) at 55. To summarize even further, if two sets of human reviewers review the same set of documents to identify what is responsive, research shows that those reviewers will disagree with each on more than half of the responsiveness claims.” Order, at pp. 7-8.

Or, following the rule of KISS (Keep it Simple, Stupid), “In other words, people make mistakes, and, according to the evidence, they make them regularly when it comes to judging relevance and responsiveness.” Order, at p. 8.

Second is that the FRCP requires perfection in discovery responses.

“The second myth is the myth of a perfect response. The Commissioner is seeking a perfect response to his discovery request, but our Rules do not require a perfect response. Instead, the Tax Court Rules require that the responding party make a ‘reasonable inquiry’ before submitting the response. Specifically, Rule 70(f) requires the attorney to certify, to the best of their knowledge formed after a ‘reasonable inquiry,’ that the response is consistent with our Rules, not made for an improper purpose, and not unreasonable or unduly burdensome given the needs of the case. Rule 104(d) provides that ‘an evasive or incomplete * * * response is to be treated as a failure to * * * respond.’ But when the responding party is signing the response to a discovery demand, he is not certifying that he turned over everything, he is certifying that he made a reasonable inquiry and to the best of his knowledge, his response is complete.

“Likewise, ‘the Federal Rules of Civil Procedure do not require perfection.’ Like the Tax Court Rules, the Federal Rule of Civil Procedure 26(g) only requires a party to make a ‘reasonable inquiry’ when making discovery responses.” Order, at pp. 8-9. (Citation omitted).

And using electronic searching and predictive coding doesn’t impose a higher or different standard than old-fashioned eyeballing. If it did, no one would use it.

So Beeks, you’re cool. “Petitioners provided the Commissioner with seed sets of documents from the backup tapes, and the Commissioner determined which documents were relevant. That selection was used to develop the predictive coding algorithm. After the predictive coding algorithm was applied to the backup tapes, petitioners provided the Commissioner with the production set. Thus, it is clear that petitioners satisfied our Rules with their response. Petitioners made a reasonable inquiry in responding to the Commissioner’s discovery demands when they used predictive coding to produce any documents that the algorithm determined was responsive, and petitioners’ response was complete when they produced those documents.” Order, at p. 9.

So, chaps, want to try the case?

 

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