Judge Peck’s Predictive Coding Opinion – reporting the reaction

It needed no great prescience to anticipate a flood of articles about US Magistrate Judge Andrew Peck’s opinion in the Da Silva Moore predictive coding case (Monique Da Silva Moore, et al., v. Publicis Groupe & MSL Group, Civ. No. 11-1279 (ALC)(AJP) (S.D.N.Y. February 24, 2012). I made an early election to stand back before writing about it, reckoning that I do you better service by pointing to the best of the early reactions and then taking a broader approach myself, not least in jurisdictional terms.  I may challenge from time to time the idea that the US is in any sense “ahead” of the rest of us in terms of rules and processes, but there is no challenge to the suggestion that new technology gets its most exacting trials in the fire of the Federal Rules of Civil Procedure, and other jurisdictions can observe and learn.

In what is, I think, the only UK article thus far apart from mine, Charles Holloway of Millnet reckons, in an article headed In the jaws of ediscovery, that an English judge would take the same view as a US judge in similar circumstances. There are judges and judges of course, on both sides of the Atlantic, but I think Charles is right. Millnet know whereof they speak in this regard, having been involved in the only UK predictive coding case whose outcome has been written up publicly – see my article Two predictive coding case studies emphasise time and cost savings, which involves a US case involving Epiq Systems well as Millnet’s UK one.

The present article points to some (by no means all) of the commentary which has appeared already, allowing me to go on to take a slightly different approach in my separate article.

The best plots are those which can be summarised in a few words. “Father murdered, uncle bad, Ophelia hot, Hamlet mad, all dead” tells you all you need to know about Shakespeare’s most famous play.  The equivalent in respect of Judge Peck’s opinion came from Warwick Sharp of Equivio who quickly boiled the whole thing down to this:

1.    More than just approved: Judge Peck actively encourages the use of predictive coding, noting that “it may save the producing party (or both parties) significant amounts of legal fees in document review.”

2.    Better than the alternatives: Judge Peck states “the Court determined that the use of predictive coding was appropriate considering…the superiority of computer-assisted review to the available alternatives (i.e., linear manual review or keyword searches).”

3.    Better than unattainable perfection: The Judge notes: “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.”

4.    More statistics than maths: The court’s focus is on statistically valid results rather than the mathematics of the algorithms. Quoting his article on predictive coding, Judge Peck states: “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.”

5.    More than just technology: Judge Peck makes clear the need to “design an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant ESI.”

Recommind’s Craig Carpenter acknowledged in Judge Peck’s Predictive Coding Game-Changer the foundation laid by the Sedona Conference and the TREC Legal Track amongst others, as well as “fierce competition between different approaches” by “forward-looking vendors” which has “forced all to up their game to capture more business”.  Any perceived risk in using such technology, he said  “has already effectively disappeared with regulatory authorities, as most regulators already use predictive coding”. How long would it be, he asked, “till not using predictive coding creates a strategic risk to a party?”. He adds that Recommind is planning to formalise the educational options it has long offered (they have since done that – see Recommind Announces Predictive Coding Education, Training and Certification Program).

Bob Ambrogi, writing on Catalyst’s blog, called his article In a Milestone for Predictive Coding, Judge Peck Says, “Go Ahead, Dive in!” He pulls out five factors which Judge Peck identified as crucial:

1 The parties’ agreement
2 The vast amount of ESI to be reviewed (over 3 million documents)
3 The superiority of computer-assisted review to the available alternatives (i.e. linear manual review or keyword searches).
4 The need for cost-effectiveness and proportionality under Rule 26(b)(2)(C)
5 The transparent process proposed by defendants

… with particular emphasis on transparency and the judge’s recommendation “that counsel in future cases be willing to at least discuss, if not agree to, such transparency in the computer-assisted review process.”. Bob Ambrogi is not the only one to set out in full this key paragraph from the Opinion about the future:

What the Bar should take away from this Opinion is that computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review. Counsel no longer have to worry about being the “first” or “guinea pig” for judicial acceptance of computer-assisted review. As with keywords or any other technological solution to e-discovery, 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. Computer-assisted review now can be considered judicially-approved for use in
appropriate cases.

Symantec’s Matt Nelson in Computer-Assisted Review “Acceptable in Appropriate Cases,” says Judge Peck in new Da Silva Moore eDiscovery Ruling reminds us that predictive coding is one tool of many technology-assisted review applications, and that knowing when to use it and how to use it is critical.

Katey Wood on the ESG Information Asymmetry blog headed her article Judicial Coup for Computer-Assisted Review. Katey refers to the detailed arguments between parties as to the creation of a seed set and other points which require both legal and some technical skill, saying – “it should disabuse anyone of the notion that predictive coding will relieve us of lawyers. Using it can require a lot of negotiation (and math) to agree on methods.” There is a serious point here about the future role of lawyers, which I will expand on in due course.

I saw one suggestion, without noting its source, that the actual technology used is irrelevant. This is a misreading of what Judge Peck said. He certainly emphasised the importance of the process and, quite properly, declined to name the product actually being used. I cannot see that he suggested that all products with the label “predictive coding” are the same, and it would be curious if he had done so or had ventured any view on the distinctions, or lack of them, between rival applications. Would-be buyers (and there will be many more of them now) will form their own views – I hope – in what has become a fiercely competitive market.

Alison Frankel under the heading In e-discovery breakthrough, judge endorses predictive coding’ on the Thomson Reuters News and Insight blog, whilst taking much the same line as the other commentators, seems to be the only one who has allowed the dissenting plaintiffs to get a word in edgeways, quoting an e-mail from their counsel. The research methodology adopted in this case, they said, “lacks clearly-defined reliability standards”, and is inappropriate where “the vast majority of relevant evidence is controlled by the defendant employer”.  Employment discrimination cases do of course have their own characteristics, but many other types of cases have that asymmetry between the parties. I come from a jurisdiction where the giving party is, by default, the one who makes the primary decisions as to what is disclosable, and we get by without suggesting that this is “tantamount to allowing the fox to guard the hen-house” (that particular expression, now elevated to the hoary status of cliché in this context, has always puzzled me; foxes do not overlook or hide things – they just like killing them, as anyone who has ever had to collect up a shed full of dead chickens will know. Perhaps I’m missing some subtle point of advocacy here). Given the position which they are taking on behalf of their clients, it is unsurprising that class counsel have reacted publicly in this way.

Alison Frankel also draws attention to a client alert by Maura Grossman of Wachtel Lipton in which Maura says that the Opinion “should pave the way for wide acceptance of the use of technology-assisted document review in major civil litigation and rein in costs of document production in Federal court law suits”. That won’t happen, of course, if every judicial attempt to focus on informed transparency and on proportionality is met by the kind of detailed attack which I deprecated in my own post In which Da Silva Moore brings out the Anglo-Saxon demotic in me.

Conor Crowley, in a memo called Judge Peck Endorses Predictive Coding on the Equivio News page drew attention specifically to how Judge Peck handled objections of this kind. This article dissects both the objections and the judge’s reaction to them, with the scrupulous footnotes and cross-references which Conor usually gives.

Jon Resnick of Applied Discovery in The E-Discovery Opinion We’ve Been Waiting for Has Arrived similarly focuses on the objections and how the judge “pre-empted” them, as Jon put it. He draws attention also (as did the judge) to the advantages of having your own expert on hand to help the court, as these parties had.

Between them, these articles cover the ground as it stands at the moment and, incidentally, give you all the quotations you could want from an Opinion which is rich in them.  There are other articles, but I have picked those which identify particular points worth emphasising. There will be more – I can think of two or three commentators, so far silent, whose views will be worth having*.  The ones picked out here give you the essence of it.

* One of those, by eDJ’s Greg Buckles, came to hand as I was about to go to press. Called Tech Take Aways in Judge Peck’s Da Silva Opinion, its contents follow its title – as you would expect. Greg’s article need no endorsement from me, so I just add it here, keen to press ‘Publish’ before any more turn up.

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