If you are not yet familiar with the plaintiffs’ arguments about predictive coding (I use the word “about” in its broadest sense, since much of the argument appears to be about some completely different agenda) in Da Silva Moore v. Publicis Groupe & MSL Group, Rob Robinson has helpfully gathered together the formal documents in one place.
In my 7 March article Judge Peck’s Predictive Coding Opinion – Reporting the Reaction, I picked out points made by various of the better-known commentators on the then state of play in the Da Silva Moore Predictive Coding dispute. I ended that article by saying “I can think of two or three commentators, so far silent, whose views will be worth having.” Today brings us the expected article from Herb Roitblat, CTO and Chief Scientist for OrcaTec, one of those whose opinion I had in mind.
Its title, Da Silva Moore Plaintiffs Slash and Burn their Way Through eDiscovery, carries with it the implication that there is more at stake here than the outcome in this particular case. It also gives a view of the plaintiffs which is shared by many, and which Herb expresses more eloquently than any of us.
Before turning to the article itself, it is worth saying a word about the general reaction to the position taken by the plaintiffs. Apart from one commentator, who seems to have appointed itself cheer-leader for the plaintiffs’ own position, the reaction has been strangely muted. Those who have continued to write about it have rather resembled the passers-by who step round the steaming heap in the middle of the pavement, perhaps reporting its presence but otherwise ignoring it. I include myself in this, with my comment from a couple of days ago:
Serious discussion has been drowned by things which have nothing to do with developments of law, practice and procedure, still less with proportionate justice, and which have not a lot to do with the case itself.
If truth be told, I wondered if I was missing something. Those of us brought up in other jurisdictions find it hard to understand the aggressive, take-any-point, style adopted in US litigation, with its unpleasant personal attacks and its expensive, pointless, grapeshot approach to facts, issues and character. Even without examining the detail of the plaintiffs’ criticism of the disputed protocol, the whole approach seemed to me to lack any logic, coming as it did from lawyers who had agreed the use of the technology, expressed themselves proponents of predictive coding generally, had had ample opportunity to contribute to the protocol’s final form, and who were given by it the right to challenge both method and outcome.
The personal attacks on Judge Peck were more puzzling still (“disgraceful”, “unpleasant” and “irrelevant” would be better words, but I will stick to puzzlement for now). The gist of them seemed to be that Judge Peck’s knowledge of the technology and his determined advocacy of better ways of meeting the FRCP Rule 1 objectives somehow disqualified him from hearing cases involving its use. As Herb Roitblat says:
If the implication is that judges should remain silent about methodological advances, then that would have a chilling effect on the field and on eDiscovery in particular. A frequent complaint that I hear from lawyers is that the judges don’t understand technology. Here is a judge who not only understands the technology of modern eDiscovery, but works to educate his fellow judges and the members of the bar about its value. It would be disastrous for legal education if the Plaintiffs were to succeed in sanctioning the Judge for playing this educational role.
The plaintiffs’ line here seemed to me to be a particularly egregious example of the indiscriminate grapeshot attitude referred to above. What else could explain it? (that is a genuine question, incidentally, not a rhetorical device; I would love to know).
As I say, I wondered if I was missing something. It has taken Herb Roitblat to articulate what the rest of us found hard to express.
Herb’s article needs no summary from me. It combines learning with lucidity, as one would expect from the co-author of one of the few peer-reviewed articles on predictive coding who is himself the designer of predictive coding tools. It gains status from the fact that OrcaTec is a competitor of Recommind, whose software and processes are the subject of the protocol. I will content myself with quoting Herb’s conclusion:
The Parties in this case are not arguing about the appropriateness of using predictive coding. They agreed to its use. The Plaintiffs are objecting to some very specific details of how this predictive coding will be conducted. Along the way they raise every possible objection that they can imagine, most of which are beside the point; they misinterpret or misrepresent data; they fail to realize that they have the very information they are seeking; and they seek data that will not do them any good, all the while vilifying the judge, the other party, and the party’s predictive coding service provider. It is as if given the keys to the candy store, they are throwing a tantrum because they have not been told whether to eat the red whips or the cinnamon sticks. Their slash and burn approach to negotiation is far beyond zealous advocacy and far from consistent with the pattern of cooperation that has been promoted by the Sedona Conference and by a large number of judges, including Judge Peck.