Litigation attorneys were abuzz last week when a few breaking news stories erroneously reported that The Honorable Andrew J. Peck, United States Magistrate Judge for the Southern District of New York, ordered the parties in a gender discrimination case to use predictive coding technology during discovery. Despite early reports, the parties in the case (Da Silva Moore v. Publicis Group, et. al.) actually agreed to use predictive coding technology during discovery – apparently of their own accord. The case is still significant because predictive coding technology in eDiscovery is relatively new to the legal field, and many have been reluctant to embrace a new technological approach to document review due to, among other things, a lack of judicial guidance.
Unfortunately, despite this atmosphere of cooperation, the discussion stalled when the parties realized they were miles apart in terms of defining a mutually agreeable predictive coding protocol. A February status conference transcript reveals significant confusion and complexity related to issues such as random sampling, quality control testing, and the overall process integrity. In response, Judge Peck ordered the parties to submit a Joint Protocol for eDiscovery to address eDiscovery generally and the use of predictive coding technology specifically.
The parties submitted their proposed protocol on February 22, 2012 and Judge Peck quickly reduced that submission to a stipulation and order. The stipulation and order certainly provides more clarity and insight into the process than the status conference transcript. However, reading the stipulation and order leaves little doubt that the devil is in the details - and there are a lot of details. Equally clear is the fact that the parties are still in disagreement and the plaintiffs do not support the “joint” protocol laid out in the stipulation and order. Plaintiffs actually go so far as to incorporate a paragraph into the stipulation and order stating that they “object to this ESI Protocol in its entirety” and they “reserve the right to object to its use in the case.”
These problems underscore some of the points made in a Forbes article published earlier this week titled, “Federal Judges Consider Important Issues That Could Shape the Future of Predictive Coding Technology.” The Forbes article relies in part on a recent predictive coding survey to make the point that, while predictive coding technology has tremendous potential, the solutions need to become more transparent and the workflows must be simplified before they go mainstream.