Practice English Speaking&Listening with: Legal Lite S2 Episode 2 - Judge Andrew Peck

Hello again. My name is Matt Altass, CEO and founder of Altlaw eDiscovery, and

this is Legal Lite, the eDiscovery video blog and podcast, where we discuss

everything eDiscovery.

Today I'm joined by eDiscovery royalty. He's a long-term proponent and

evangelist for eDiscovery and legal technologies. He's also a former United

States Magistrate Judge; a former head judge of the Southern District of New

York. He is Judge Andrew Peck.

So welcome Judge Peck.

Thank you very much. Thank you so much for giving us some of your time.

I know you're so busy over here. Just four panels over the three days

Four panels? So how many so far? Did one today. Have two tomorrow, and then the

judges keynote first thing on Thursday morning.

And they told me you retired.

Well that's a slight exaggeration. I was a magistrate judge in the US District

Court for the Southern District in New York for 23 years, and a little under two

years ago I retired from the court, and decided my mind would turn to mush if I

were just sitting home and reading; playing; going to baseball games - whatever

So I'm now working at DLA Piper as senior counsel and, really, sort of the

Judge-in-Residence for them. So I'm doing a combination of hands on litigation,

substantive work on copyright and trademark, and then also doing mediation

arbitration and Special Master work, as well as just generally consulting with

the firm's lawyers and clients on - you know - 'Judge, if we made this argument in

front of you when you were still on the bench, how would you react to it?' and

other things where I can bring both the judicial perspective and forty some-odd

years as a lawyer and judge to the the matter.

Well I must admit I'm feeling a little bit starstruck myself because

as far as far back as I can remember

your name has been synonymous with eDiscovery and legal technology, particularly

in the early days of predictive coding and TAR (technology assistant review).

When did you first become acquainted with the technology, and what led you so

emphatically to lend your name and potentially your reputation, let's be

honest, to that technology? I actually go back - my

first decision in eDiscovery related world was back in 1995 - my first year on

the bench - in an otherwise totally unforgettable - sorry - forgettable case:

Anti-monopoly against Hasbro and Toys 'R' Us, and the issue there was this game

that nobody except its inventors seemed to be interested in, and whether it was

getting enough shelf space in Toys 'R' Us and other merchants. And the lawyer for

anti-monopoly asked for information about sales of Monopoly, and other games,

to show that anti-monopoly was not getting a fair share of space in the

stores - or whatever - and first the information was produced on paper. Just

reams and reams of information, and then the plaintiff's lawyer got smarter and

said 'can't you do a computer printout giving me this information?' and I had

this quote in the opinion that my friend and colleague Judge Schindlin liked to use

for a number of years - and Law Review articles where I said 'by now it is

black-letter law that computerised information if relevant is discoverable.'

Other than that quote the opinion has no relevance to anything, and is eminently

forgettable. Fast-forward to the 2006 rules amendments to the Federal Rules of

Civil Procedure, here in the United States,

and I had been a sort of Judge-in-residence at the American Bar Association Employment Lawyers annual

meeting, which was always at a nice beach

resort in May - so it was a nice chance to escape

the New York cold weather. And around 2006 they asked if I would come back again

and I said 'sure' and they said 'you know the last few years we've suggested a

topic for you. We don't have anything in mind this year. Could you suggest

something?' And I knew that the 2006 amendments were likely to pass and would

soon be effective, so I suggested maybe I could talk about that and they said

'that's a great idea.' And I did, and then I think it was BNA

labor law reporter - now I think owned by Bloomberg - but at that point BNA picked

up one line. You know, in the whole course of reporting on that they said 'and Peck

spoke about the new 2006 rules.' Few weeks later, maybe a month or two later I

get a call from somebody from the New York City Bar Association - 'Judge we see

you appear to be an expert on the new rules. Would you come do a panel for us

on it. And I, of course, said yes and then just kept getting more and more involved

in eDiscovery in the Sedona conference which is the leading think-tank

on discovery matters, and then in 2010/2011 I was asked to give a keynote

at the Carmel Valley eDiscovery retreat - a new discovery conference event - and I

said 'what do you want me to talk about?' And they suggested 'why don't you talk

about the various ways of searching for data now that there's so much data based

on electronically stored information?' And I researched, and then spoke about how

we've gone from the old-fashioned search of paper - the ability to use

computer-assisted review, and several people in the audience who I respect

very much and respected, including Chris Dale from your side of the pond, said 'you

really should write this up and get it published. Get some publicity for this

better way of doing things.' And I did write it up, and it appeared in what was

then Law Technology News - now Legaltech News - that article appeared, in if I'm

remembering my dates right, the October 2011 issue of Legal Technology News. A

month later the DaSilva Moore against Publicis case was referred to me, and

they sent me some preliminary material and then walked in to my

courtroom, and I actually turned and said to them 'One of you at least must have

thought you died and went to heaven. I've written an article about technology

assisted review. You are talking about using it in this case.' And that led, by

February of 2012, to my decision in the DaSilva Moore where I said, in the first

case anywhere in the world as far as I know, that the use of Computer Assisted

Review, also known as Predictive Coding, now more known as Technology Assisted

Review, or TAR, can be appropriately used if the responding party wants to and that

the courts would accept it. And that was a groundbreaking decision.

And I've heard you speak a lot recently on the disclosure - inadvertent disclosure - of

privileged data, and specifically when talking about the use of rule 502.

Explain to me why rule 502 is so important when dealing with ESI.

And why it is so ignored by so many lawyers which I still don't understand. Federal

Rule of Evidence 502 deals with the subject of inadvertent production of

privileged information, and whether or not it will be a waiver. The default

provision under the rule Federal Rule of Evidence 502B as in 'boy' says you would

have to show that the disclosure was inadvertent; that you took careful steps

to avoid having produced privileged material and that as soon as you realise

privileged material had been disclosed you promptly notified the other side and

called for it back. Now that's a certain amount of protection, but you got to go

through all those hoops where opposing counsel, and potentially the judge, will

be looking at it with hindsight. Were you really careful enough? etc. 502D as in

'district' is what I have called your get-out-of-jail-free card. It says that

if the parties agree and the court orders, or even if the parties don't

agree, but you get the court to enter the order that it is not a waiver of the

privilege in that litigation, or in any other litigation with any other party, in

Federal or State Court. So it is a very broad protection. The reason it's so

important - I mean even in the old paper days something could slip through, but

with the amount of ESI that we are dealing with, where it could be millions

or more than millions of emails and other forms of electronically stored

information. I don't care how careful your firm, your vendor, both, are at doing

the review. I can almost guarantee that in every case something privileged is

going to slip through whether you're using TAR; whether you're using manual

eyes-on review by lawyers, contract attorneys, whoever. If nothing else, even

if you're very careful, and if my firm with the outside counsel, you did

a search for anything that has the @DLAPiper.com extension etc - fine.

Nevertheless, if nothing else, an email from business person A to business person B

that says 'Andy says that we should do X' and the reviewers just are not on top of

their game and they don't realise that Andy might be Judge Andrew Peck, now

counsel to the client, and that that is revealing privileged legal advice. If you

have the 502D order, the other side is required to give that back once you call

it to their attention. If you don't have it and you have to go through 502B

there will be arguments as to whether you were careful enough in your review

why the lawyers didn't spot it, and things like that. And there is nothing

more embarrassing than to have to call your client and say some privileged

documents slipped through, and now we've got to make a motion to the court in

order to get it back. And there is no, or virtually no, downside

to - particularly if you are the producing party - often that means the defendant - to

having a 502D non-waiver order, and when I was on the bench I created a simple

two paragraph order that essentially in paragraph 1 said 'this is an agreement

under rule 502D, and it is to extend as far as 502D allows', and then the second

paragraph which I did after a lawyer at a conference I was at said 'that's great

Judge - you understand all this, but what if I'm in front of some Neanderthal judge

who doesn't really understand and says 'okay I gave you your one paragraph 502

waiver order, now press the staples easy button, and don't take the time to review

the documents, and produce them all. And when you find ones that were privileged,

you'll call them back as 502D allows, so the second paragraph says 'nothing in

this order is meant to prevent or hinder the party from doing a careful review

for privileged confidentiality' etc. There are bells and whistles one can add to

that but that's the sort of simple two paragraph order I used to be able to say,

'and if you're interested you can just go to the Southern District of New York

website and under my rules pick it up from there.' I'm not on the

court anymore so my rules are no longer on the

Southern District of New York website nevertheless I've beat this dead horse

well, not so dead horse - because lawyers still aren't using it enough - that a

simple Google search for 'Judge Peck' and '502D' will bring up various places where

that order has been reproduced by parties. After the DaSilva Moore I was not

yet done with TAR cases.

I had two other cases where I opined about the use of Technology

Assisted Review. In Rio Tinto against Valley, I said that by then - and by then

we had decisions out of England and Ireland - and I said 'by now it is

black-letter law that if the responding party wants to use Technology Assisted

Review, in my opinion, courts would allow that to

happen in anywhere in the English-speaking world, essentially, and

then a year or so later in the case against Hiles against the city of New

York, the parties came to me, and the plaintiff was trying to force the city

to use TAR, and the city was reluctant to say the least. It was saying 'no no we

want to continue to use keywords, as we've started to do it in this case we

think that's the best way to get this done', and I'm trying to put my thumb

on the scale in the hearing, like, 'you have read my opinions right? You know I'm

really in favour of the use of TAR, and I think you know it's a very good system,

as good as, if not better than, any other form of review.' And the city said 'we

understand that, judge, and we know how you feel.

Nevertheless, we don't think it's appropriate in this case. And so I wound

up writing the decision that said 'as much as I would have liked them to use

TAR, it's my view that these Sedona principles of which Sedona principle six

is a key, and it says 'the responding party is in the best position to

determine how it is going to review and produce responsive information', so based

on that, and finding nothing in the rules that would allow me to force a reluctant

party to use TAR in Hiles, I said I would hope parties use it, but if the

responding party doesn't want to, it doesn't have to. However, that might limit

some of its options to complain about the cost of review or some related

things. But in general I come out with those three cases saying if the

responding party wants to use TAR, it should be allowed to do so. If the

responding party does not want to use TAR, it is not up to the opposing party

or the court to force them to use it.

I imagine that some it's an ever-increasing problem with the growing datasets are out there, but particularly

with the the growing use of messaging apps and the casual language that

employs. Privileged data has got to be being unwittingly disclosed in ever-increasing numbers.

Yeah I mean we've gone during my lifetime and the

wit in the back who's saying 'yeah they started writing on rocks when you were

first in practice' - it's an exaggeration, but we've gone from sort of formal

looking letters and business memos, to email, and now email is sort of becoming

passé, particularly with the younger generation of workers, and it's all text

messages and things like that, where it's even more informal than emails

were, and between abbreviations and smiley faces and other emoticons, it

is quite a challenge - both in terms of spotting privileged information, but also

just in the review tools. I mean TAR is a very word-based system. You need

enough material for the TAR tool to work. I believe it can work on text with

sufficient training, but it does make it a much bigger challenge and then you're

right - informality somewhere else - an email might have said 'our

lawyers said X' or 'a lawyer Smith said X'. Now, probably not. And then you've got all

the abbreviations some of which I've learned from my son; others I've picked

up in other ways. But I'll tell this story - you can always cut it out - I was

emailing a judge of my vintage who was out in the West Coast. We had been in new

judges school together. I was coming out there for a conference, and I wanted to

get together with him and his wife for dinner and so

I sent them an email and he emailed back, and at some point in the email I said 'it

looks like Tuesday at 8 o'clock is you know works for both of us.

LMK if that works.' and I get an email back saying 'what on earth is LMK?' and I

email back 'and I can't believe you don't know that that means 'let me know', and his

response was 'so I didn't know that. BFD.'

So we've gone from writing on cave walls to letters... Thanks Matt!

...to emails, instant messaging. What your predictions for the next decade in legal technology, and

eDiscovery? Ah. You know it is still the fact that

the majority of cases today are still using keyword searching, and are not

using TAR, so my prediction for 10 years from now is 'everyone is finally going to

be using TAR', and the reason for that is because there will be some better, newer

AI based technology that everybody will say 'I don't want to be the first to use

it - I'm not ready for that.' you know? Less jokingly, I think we are going to see

more and more use of AI in the practice of law - both in connection with discovery;

in connection with legal research; in many ways, some of which I probably can't

even imagine as we sit here now.

The next part of the show is probably my favourite bit- where I ask you to tell our audience

something that they otherwise wouldn't know about Judge Andrew Peck.

So I ask: Did you know that Judge Andrew Peck...?

...is also known as Inspector Baynes of the Surrey Constabulary, in Surrey England,

yes. And the reason is I have been a Sherlock Holmes fanatic since I was in

- pardon the pun - elementary school. There is both the Sherlock

Holmes society of London, which I am also a member of, and the Baker Street

Irregulars, which is the New York-based international Sherlock Holmes group of

aficionados. And you can't just say, you know, 'here's my fifty bucks.

I want to be a member. You have to be invited to join the club based on

service to the cause, meaning keeping Sherlock Holmes' reputation and memory

alive. And when I was invested into the Baker Street Irregulars in January

1973. When you get invited into the Baker Street Irregulars you are given a

title. Nobody can be Sherlock Holmes or Doctor Watson.

Originally it was the 60-story titles, and when those got used up, even though

there is some recycling of investitures when somebody passes away, the group has

gone to character names. So at the age of 20, I was invested as Inspector Baynes,

because it was one of the few Police Inspectors that Sherlock Holmes spoke

well of, and didn't think was a bumbling idiot, and so the then head of the Baker

Street Irregulars, knowing I was going to law school, and inspectors in the

Constabulary were as close as he could come to thinking of the right way said

in the hope that I will go far in my profession, like Holmes said Baynes would in his.

That's how I got that name, so that is -

you know, a few people or some people do know I'm a Sherlock Holmes collector and

fanatic, not many outside of the organisation know my title.

Fantastic! Judge Peck thank you so much for giving us your time.

It's my pleasure.

So that was Judge Peck. Don't forget: subscribe. Hit the bell to be notified.

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