Ride the Lightning

Da Silva Moore: EDD's Version of Keeping Up with the Kardashians

May 22, 2012

Except, apparently, you can't keep up with e-discovery's version of a reality show.

I did not anticipate the flood of e-mails and phone calls that followed my last post. As readers know, I did not go looking for this story – it came to me through someone who had documents related to the case who could not be publicly involved. Little did I realize that many more people would come forth with information of their own – and some of them are big names in the e-discovery world.

All of the comments I received were positive. I am grateful for the support of so many. This case has engendered a "Kardashian" response amongst those who follow e-discovery, so much so that I was even sent this cartoon (which is only available if you belong to the LinkedIn group on Technology-Assisted Review) so I have posted it here. There have been a number of blog posts and I thank all of the authors for their kind words.

With a good deal of reluctance, I came to the conclusion that I needed to write again about Da Silva Moore after hearing from so many with knowledge of pertinent facts. I am not anxious to do so again after today.

Everything I write here has been confirmed by a minimum of two sources – all (for various good reasons) do not wish to be identified. I found the sources credible – if I had not, I would not be writing.

Here is what I have learned:

• ACEDs contacted Judge Peck to speak at one of its conferences. Judge Peck seemed to indicate his interest in doing so, but when he asked for a teaching fee which ACEDS declined to give him, he withdrew. Several of those who contacted me suggested that ACEDS might therefore have a personal motive for, as they put it, "going after Judge Peck." Other possible motives were suggested by others in my previous post. ACEDS has investigated a critic previously and has been described as a bully (among the nicer words). Its prominent role in investigating Judge Peck and the conclusion that many have drawn that ACEDS is working with the plaintiff drew harsh criticism that a certifications body has acted in a very unseemly manner by inserting itself into a controversial case in which it may have an interest in the outcome.
• Several law firms have told vendors affiliated with ACEDS that they should not be affiliated with it because the law firms have the perception that ACEDS is going after a federal judge, which they see as inappropriate for a certifications body. One vendor confirmed this. It is distancing itself and considering terminating the relationship.
• One brave soul said I could quote him by name to indicate his support for certifications in general, but also to say that ACEDS was disingenuous in at its conference suggesting to attendees that Verisqil was an independent certification body when it is clearly not. He had some interesting things to say and I have reprinted his note in full at the end of this post.
• At least two sources confirm that they know that Judge Peck was paid teaching fees by five or more vendors for LegalTech. As I have noted previously, such fees are ethically permissible though there are restrictions. Nonetheless, my own conlusion is that there has been no ethical violation. The question is whether these fees give rise to an appearance of impropriety given the number of such fees paid by vendors over time in a case in which predictive coding is very much in issue.

Clearly, there are folks not happy with ACEDS.

But do they think Judge Peck should recuse himself? All but one of those who contacted me said yes. Their reasons varied. Most believe that he wants it too much, that he wants to be the judge who validated predictive coding and that the teaching fees present a big public image problem. As one e-discovery specialist said,  "in order to find the appearance of impropriety, you need to find smoke, not fire . . . and there's plenty of smoke here."

Many said that Judge Peck has joined a growing club of judges who enjoy being "rock stars." That is their conclusion, not mine, but I understand the perception.

One noted e-discovery expert thought Judge Peck should stay in the case and worried that judges might feel a "chilling effect" and hesitate to participate in legal education conferences based on all the controversy surrounding this case. I am sympathetic to this argument and hope this is not the result.

In the end, as I've stated before, I think there is enough "smoke" that Judge Peck should recuse himself. He is now a lightning rod for criticism - and this hurts a technology which holds great promise.

Here is the thoughtful e-mail I received from Chad Kime which makes some very interesting observations about ACEDS:

Dear Ms. Nelson,
 
Thank you for such a thought provoking and well balanced blog. The relationships between ACEDS and the Intriago group are portrayed publicly at the ACEDS conference (at least in 2011 when I attended), however, Verisqil was portrayed at the convention as an independent organization providing certification. As you put it with regards to Judge Peck, "perhaps it just doesn't look right…"  The unfortunate part is that for industry certification, we now are forced to choose between vendor-backed (and biased) certification or certification from an entity that did not disclose that their verifying 3rd party appears to be themselves…
 
As someone with an extensive marketing and finance background, I tend to follow the money and seek a potential for bias. From a qualitative perspective (that might be backed up with more research that I have time for), the amount of revenue generated by selling eDiscovery service is large, but the software vendors themselves often portray the review as a much larger expense- Catalyst Repositories pegs the review portion of cases at 76% of the costs. Assuming this number is somewhat accurate implies the review industry has three times the revenue and presumably three times the marketing budget as the technology vendors, so it would make sense for ACEDS to court the document review industry for funds more than technology vendors. This slant certainly is demonstrated in their advisory board which includes three review outsource and eDiscovery companies (BDO Consulting, Pangea3, Robert Half Legal) and only two technology oriented companies (TLO, Computer Generated Solutions) that are not directly related to eDiscovery. For completeness the others are: law firms (6), government (1), a former judge (1), corporations (5), other eDiscovery associations (WiE, ALSP), and Lex Aperta (eDiscovery legal advice and consulting).
 
Yet, there is yet another reinforcing aspect- ACEDS needs to certify more people so that their certification starts to be viewed as a legitimate certification. The document review companies often are associated with service provider eDiscovery companies (mine is no exception) and certification is one method to show legitimacy to the customers who want some assurance of competency before committing their funds. Technology companies are so focused on tool development, they do not want or benefit from CEDS certification. ACEDS can afford to treat them as secondary citizens so long as their convention and certification process is funded primarily by the larger pool of attorneys and eDiscovery vendors.
 
Personally, I believe independent certification would be beneficial in providing standards for the eDiscovery industry, so I want to believe ACEDS is truly independent.&#0
160;However, your column rightf
ully and justifiably exposes a bias that I had not considered and that MUST be considered by us on the outside as well as those within ACEDS if they wish to truly establish themselves as an association and certifying entity.
 
I look forward to reading more of your blogs!
Sincerely,
 
Chad Kime
Business Development Manager
Ji2 eDiscovery Tech

Chad, thanks for writing me – and for going on record.

With luck, I will actually get to do some Sensei work today!

E-mail: Phone: 703-359-0700

www.senseient.com

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