Squeaky Kleen

By | 17th July 2012

Magistrate Judge Nan Nolan of the US 7th District Court is shortly to retire. Those of you who remember her will recall that she is the judge in the “other” case involving an argument about how best to deal with discovery, by which I mean, not Judge Peck’s case of Da Silva, but Kleen Products LLC et al v Packaging Corporation of America.

She must be relieved that Judge Peck has fielded all the criticism and adverse comment including what seems to this relative outsider to have been an extraordinary attempt to get the judge to recuse himself from the Da Silva case on a number of grounds including that he shared an educational panel at Legal Tech with the e-discovery expert for one of the parties, Ralph Losey. As you may also recall, Judge Peck has recently thrown out the attempt to have him recuse himself in a 56 page judgment which is a model of temperance in the face of adversity.

But back to Judge Nolan and the Kleen case. This is the case where the plaintiffs sought an order requiring the defendants to use alternative technology to complete discovery after they had nearly finished with their collection and were almost ready for production.

Guidance Software’s Chad McManamy has produced a short commentary on the judge’s conclusions in this case: Championing the preservation of keywords in E-discovery [Guidance on e-Discovery, 21 June, 2012].

I have already written about this case in previous posts such as The Wood for the Trees and Predicting a Green Future. All I want to say, therefore, is that the judge has urged the parties to cooperate about discovery and keywords, modifying the keyword approach rather than abandoning it altogether; not surprising considering the work which had already been done.

Cooperation is important on both sides of the Atlantic it seems!

The other point to note is the judge’s rationale for her decision which lies in her support for Principle 6 of the Sedona Conference Principles for Electronic Document Production which states that:

“Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.”

I leave the rest to Mr McManamy. His piece is a short but interesting read. I am not sure if either party “kleened up” here but Judge Nolan has certainly given us all some guidance to think about.