Predictive Coding’s Silver Blaze: the dogs who didn’t bark in the night-time

Perhaps the only person who will understand my heading instantly is the judge whose Opinion in Da Silva Moore v Publicis Groupe is at the centre of eDiscovery attention this week.  US Magistrate Judge Andrew Peck is as much an authority on Sherlock Holmes as he is on the use of technology in litigation, and will recognise the story of the eponymous horse and the strangely silent canine.

Well, that’s broken the first two rules of good web writing – follow an obscure heading with an opening paragraph which takes the reader yet further away from comprehension. What is the connection between horses, dogs and fictional detectives, on the one hand, and an important electronic discovery Opinion on the other?

Silver Blaze is a race-winning horse of whom are great things were expected. He disappears on the eve of a big race and his trainer is found dead.   The following dialogue takes place between Holmes and the detective, Gregory:

Gregory: “Is there any other point to which you would wish to draw my attention?”
Holmes: “To the curious incident of the dog in the night-time.”
Gregory: “The dog did nothing in the night-time.”
Holmes: “That was the curious incident.”

On Friday afternoon, Judge Peck issued an Opinion and Order in the Da Silva Moore case in which he said “This judicial opinion now recognises that computer assisted review is an acceptable way to search relevant ESI in appropriate cases.” You will hurry, no doubt, to see what Recommind, the most vociferous proponent of predictive coding, has to say; this Opinion is important to them as it is to anyone else with an interest in reducing the costs of eDiscovery, and they are one of the more voluble users of social media to get their messages out. Nothing.

You know, perhaps, that Ralph Losey always writes on a Sunday; he wouldn’t miss an opportunity to write up an Opinion like this, would he? You find instead  an article called Picking Battles and Knowing When Not to Speak; it has an animated version of Ralph, dressed in pigeon-fancier’s flat hat, braces and (apparently) nothing else, describing himself as a “happy guinea pig”, followed by a few worthy quotations and links. What is going on?

The mystery is resolved when you look at the Opinion and at the Protocol attached to it. Whilst Judge Peck is careful expressly to emphasise that he is not endorsing any particular application, Recommind’s Axcelerate eDiscovery is identified in the Protocol as the software being used by the defendants, and it is clear from the transcript of the hearing that Recommind are actively advising them. The defendants’ lawyers are Jackson Lewis, where Ralph Losey is a partner, and it is reasonable to suppose that he personally is engaged in the case.

The opinion came out on Friday, and anyone who intended to write an immediate article would have had to do it overnight or at the weekend. The apparent curiosity –  that neither Recommind nor Ralph Losey barked in the night – is explained by their involvement in the case. The dog who did not bark when Silver Blaze was taken away was similarly inhibited – it was the horse’s trainer who took him away and dogs don’t bark at people they are close to.

The Holmes story ends well – Silver Blaze duly wins the race.  My analogy takes us only so far –  electronic discovery is not a race and, whatever their views about each other, the various providers of predictive coding software are unlikely to beat each other to death, as happened to the unfortunate trainer (at the hands, or, more accurately, the feet, of Silver Blaze himself). Indeed, they all have a common interest in this Opinion and in the outcome of the continuing dispute between the parties – Judge Peck’s Opinion and Order are unlikely to be the end of the story.

I am conscious, when these big stories break, that people come here for commentary on them. That is flattering, but it is an encouragement  to me to take my time rather than the reverse. There will be no shortage of good comment –  Matthew Nelson of Symantec was, so far as I can see, the first out of the traps with a thoughtful article, as opposed to a mere report, about the Opinion – see Computer-assisted review “acceptable in appropriate cases,” says Judge Peck in new Da Silva Moore eDiscovery ruling.  The estimable Ron Friedmann followed with Computerized Document Review Defensible at Last? There will doubtless be more as dawn breaks over the US.

I had my interim say in an article called In which Da Silva Moore brings out the Anglo-Saxon demotic in me which went to press on Friday, twenty minutes before the Opinion came to hand.

I will bide my time before I add any more – this Opinion will still be important a year hence, and I would rather stand back from it a little before putting it into a context which transcends this particular case, those involved in it, and its peculiar jurisdiction – “peculiar” in its primary sense of belonging, of course, and only slightly in its secondary implication of odd or different. What effect will this Opinion have in the UK, in Canada, Australia or Singapore, whose drivers are broadly the same, yet crucially different, from those in the US?

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