The Honorable Andrew J. Peck, United States Magistrate Judge for the Southern District of New York, issued an opinion and order (order) on February 24th in Da Silva Moore v. Publicis Groupe, stating that computer-assisted review in eDiscovery is “acceptable in appropriate cases.” The order was issued over plaintiffs’ objection that the predictive coding protocol submitted to the court will not provide an appropriate level of transparency into the predictive coding process. This and other objections will be reviewed by the district court for error, leaving open the possibility that the order could be modified or overturned. Regardless of whether or not that happens, Judge Peck’s order makes it clear that the future of predictive coding technology is bright, the role of other eDiscovery technology tools should not be overlooked, and the methodology for using any technology tool is just as important as the tool used.
Plaintiffs’ Objections and Judge Peck’s Preemptive Strikes
In anticipation of the district court’s review, the order preemptively rejects plaintiffs’ assertion that defendant MSL’s protocol is not sufficiently transparent. In so doing, Judge Peck reasons that plaintiffs will be able to see how MSL codes emails. If they disagree with MSL’s decisions, plaintiffs will be able to seek judicial intervention. (Id. at 16.) Plaintiffs appear to argue that although this and other steps in the predictive coding protocol are transparent, the overall protocol (viewed in its entirety) is not transparent or fair. The crux of plaintiffs’ argument is that just because MSL provides a few peeks behind the curtain during this complex process, many important decisions impacting the accuracy and quality of the document production are being made unilaterally by MSL. Plaintiffs essentially conclude that such unilateral decision-making does not allow them to properly vet MSL’s methodology, which leads to a fox guarding the hen house problem.
Similarly, Judge Peck dismissed plaintiffs’ argument that expert testimony should have been considered during the status conference pursuant to Rule 702 and the Daubert standard. In one of many references to his article, “Search, Forward: will manual document review and keyword searches be replaced by computer-assisted coding?” Judge Peck explains:
“My article further explained my belief that Daubert would not apply to the results of using predictive coding, but that in any challenge to its use, this Judge would be interested in both the process used and the results.” (Id. at 4.)
The court further hints that results may play a bigger role than science:
“[I]f the use of predictive coding is challenged in a case before me, I will want to know what was done and why that produced defensible results. I may be less interested in the science behind the "black box" of the vendor's software than in whether it produced responsive documents with reasonably high recall and high precision.” (Id.)
Judge Peck concludes that Rule 702 and Daubert are not applicable to how documents are searched for and found in discovery. Instead, both deal with the” trial court’s role as gatekeeper to exclude unreliable testimony from being submitted to the jury at trial.” (Id. at 15.) Despite Judge Peck’s comments, the waters are still murky on this point as evidenced by differing views expressed by Judges Grimm and Facciola in O’Keefe, Equity Analytics, and Victor Stanley. For example, in Equity Analytics, Judge Facciola addresses the need for expert testimony to support keyword search technology:
“[D]etermining whether a particular search methodology, such as keywords, will or will not be effective certainly requires knowledge beyond the ken of a lay person (and a lay lawyer) and requires expert testimony that meets the requirements of Rule 702 of the Federal Rules of Evidence.” (Id. at 333.)
Given the uncertainty regarding the applicability of Rule 702 and Daubert, it will be interesting to see if and how the district court addresses the issue of expert testimony.
What This Order Means and Does not Mean for the Future of Predictive Coding
The order states that “This judicial opinion now recognizes that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.” (Id. at 2.) Recognizing that there have been some erroneous reports, Judge Peck went to great lengths to clarify his order and to “correct the many blogs about this case.” (Id. at 2, fn. 1.) Some important excerpts are listed below:
The Court did not order the use of predictive coding
“[T]he Court did not order the parties to use predictive coding. The parties had agreed to defendants' use of it, but had disputes over the scope and implementation, which the Court ruled on, thus accepting the use of computer-assisted review in this lawsuit.” (Id.)
Computer-assisted review is not required in all cases
“That does not mean computer-assisted review must be used in all cases, or that the exact ESI protocol approved here will be appropriate in all future cases that utilize computer-assisted review. (Id. at 25.)
The opinion should not be considered an endorsement of any particular vendors or tools
“Nor does this Opinion endorse any vendor…, nor any particular computer-assisted review tool.” (Id.)
Predictive coding technology can still be expensive
“MSL wanted to only review and produce the top 40,000 documents, which it estimated would cost $200,000 (at $5 per document). (1/4/12 Conf. Tr. at 47-48, 51.)”
Process and methodology are as important as the technology utilized
“As with keywords or any other technological solution to eDiscovery, counsel must design an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant ESI while adhering to Rule 1 and Rule 26(b )(2)(C) proportionality.” (Id.)
The final excerpt drives home the points made in a recent Forbes article involving this and another predictive coding case (Kleen Products). The first point is that there are a range of technology-assisted review (TAR) tools in the litigator’s tool belt that will often be used together in eDiscovery, and predictive coding technology is one of those tools. Secondly, none of these tools will provide accurate results unless they are relatively easy to use and used properly. In other words, the carpenter is just as important as the hammer. Applying these guideposts and demanding cooperation and transparency between the parties will help the bench usher in a new era of eDiscovery technology that is fair and just for everyone.