Late last year, Magistrate Judge Andrew Peck of the U.S. District Court for the Southern District of New York, one of the most prominent judicial thought leaders in e-discovery, wrote an article entitled Search, Forward in which he opined that computer-assisted ESI review "should be used where it will help ‘secure the just, speedy and inexpensive’ (Fed. R. Civ. P. 1) determination of cases", but he forecast that lawyers awaiting a judicial opinion endorsing predictive coding might have "a long wait." As it turns out, the wait wasn’t very long at all; on Friday, February 24, 2012, less than 6 months after the publication of his article, Judge Peck himself issued the first judicial opinion approving the use of predictive coding "in appropriate cases."
Judge Peck issued his opinion in Monique Da Silva Moore, et al., v. Publicis Groupe & MSL Group, Civ. No. 11-1279 (ALC)(AJP) (S.D.N.Y. February 24, 2012), a gender discrimination suit brought by five female plaintiffs against Publicis Groupe, "one of the world’s ‘big four advertising conglomerates,’" and MSL Group, its U.S. public relations subsidiary. Faced with more than 3 million documents to be reviewed, the parties agreed to use predictive coding — a process involving senior attorney review and coding of a "seed set" of documents that are then used to train a computer to search the entire data set for relevant documents and cull them — but they disagreed regarding the methodology.
Defendants’ ESI proposal contemplated a series of "iterative rounds" to test and refine the searches and stabilize the training of the search software, with production to plaintiffs of both relevant and irrelevant documents returned by the refined searches. Plaintiffs would then be invited to provide feedback to allow further refinement of the searches. Plaintiffs objected to defendants’ protocol and submitted their own, which the Court apparently rejected.
In addressing plaintiffs’ objections, Judge Peck underscored the cost-savings rationale expressed in his article and carried over to his decision: "computer-assisted review ‘works better than most of the alternatives, if not all of the [present] alternatives. So the idea is not to make this perfect, it’s not going to be perfect. The idea is to make it significantly better than the alternatives without nearly as much cost.’" Consistent with Judge Peck’s directive, the parties submitted a Joint ESI Protocol, which Judge Peck "so ordered " despite plaintiffs’ continuing objections.
On February 22, 2012, plaintiffs filed objections to Judge Peck’s rulings with District Judge Carter. In sum, plaintiffs contended Judge Peck’s acceptance of defendants’ protocol allowed defendants to violate FRCP 26(g)’s requirement to certify defendants’ document production is complete and further is not sufficiently reliable to pass muster under Federal Rule of Evidence 702 and the U.S. Supreme Court’s decision in Daubert. In the opinion, Judge Peck addressed and ultimately dismissed plaintiffs’ objections. The Court reasoned that plaintiffs misunderstood Rule 26(g), which does not require such certification and observed that it would be impossible to certify the completeness of a document production of this magnitude. Moreover, Judge Peck stated that Rule 702 and Daubert are inapplicable to the manner in which parties search for documents in discovery. Judge Peck also explained, in detail, the reasons for his decision to endorse predictive coding in appropriate cases and took the time to offer some "lessons for the future."
In sum, the Court found the use of predictive coding appropriate in Da Silva Moore based on the parties’ agreement with the concept, the vast data set of more than 3 million documents, the superiority of computer-assisted review to the alternatives (manual review or keyword searches) the need for cost effectiveness and proportionality under FRCP 26(b)(2)(C) and the “transparent” process defendants proposed.
In this regard, Judge Peck stressed the importance of cooperation among counsel and reiterated the Court’s endorsement of The Sedona Conference® Cooperation Proclamation. Moreover, and notwithstanding plaintiffs’ expressed concerns, Judge Peck praised defendants’ transparency and credited their agreement to provide to plaintiffs all of the documents used to create the seed set, both relevant and non-relevant, as essentially paving the way for the Court’s decision.
So, what does all of this mean? Is predictive coding the only way to proceed with large scale document review in the future? Will it eliminate the need for attorney involvement in the document review process? Is computer assisted review the panacea that frustrated and cash strapped litigants have been searching for to solve the incredible cost and manpower burdens of e-discovery. Well, the short answer to these questions is "no." As Judge Peck made clear in his opinion, the Court did not order the use of predictive coding, the parties agreed to it (at least some form of it); there is no requirement that computer-assisted review be used in all cases. Nor, the Court was careful to note, is Da Silva Moore a pronouncement that the ESI Protocol used in that case (which is attached to the opinion will be appropriate in other cases that use predictive coding. Finally, the Court avoided endorsing any particular e-discovery service provider or technology.
As for the continued need for attorney involvement in the review process, as noted in this blog’s prior June 2011 posting, while e-discovery software may make lawyers more efficient, "human knowledge, reaction and intuition as to facts, issues and nuances of legal theories make the role of the live attorney indispensable." Indeed, Judge Peck acknowledged as much in his opinion: "[t]he Court recognizes that computer-assisted review is not a magic, Staples-Easy-Button, solution appropriate for all cases. The technology exists and should be used where appropriate, but it is not a case of machine replacing humans: it is the process used and the interaction of man and machine that the courts need to examine."
Da Silva Moore is most significant in that it opens the door for parties to consider the use of computer assisted review or predictive coding in appropriate cases without the fear that a party or judge will resist on the basis that no court has accepted the use of this modern technology in the e-discovery process. The courts have now officially “taken the plunge,” and we predict that the pool will get crowded quickly.
Phillip J. Duffy is a Director on the Gibbons E-Discovery Task Force.