It is fascinating to watch a story break on Twitter. The news that District Judge Carter had upheld US Magistrate Judge Peck’s opinion in Da Silva Moore appeared first as a rumour, probably within a few minutes of the promulgation of Judge Carter’s opinion. Within a short time, rumour was supported by links to the opinion itself, and not long after that the first commentary appeared.
Like Judge Carter, I am going to assume your “familiarity with the facts and the predictive coding method”. As in most jurisdictions, an order will only be overturned if it was “clearly erroneous or…contrary to law” and Judge Carter found no such grounds.
Key quotations will be recycled for months to come, Including these:
“The court adopts Judge Peck’s rulings because they are well reasoned and they consider the potential advantages and pitfalls of the predictive coding software”
“The ESI protocol contains standards for measuring the reliability of the process and the protocol builds in levels of participation by plaintiffs”
“If plaintiffs determine that they are missing relevant documents, they may revisit the issue of whether the software is the best method”
“There is simply no review tool that guarantees perfection….. Manual review with keyword searches is costly….[and] is prone to human error and marred with inconsistencies from the various attorneys’ determinations of whether a document is responsive”.
“Judge Peck concluded that under the circumstances of this particular case, the use of the predictive coding software as specified in the ESI protocol is more appropriate than keyword searching. The court does not find a basis to hold that his conclusion is clearly erroneous or contrary to law”.
The opinion ends with this:
“The court reminds the parties that it affords Judge Peck’s non-dispositive rulings great deference and Magistrate Judges generally have broad latitude with respect to discovery issues”
It is worth emphasising this latter point (that is, the fact that Judge Carter added this “reminder” on to his Opinion) because the plaintiffs motion for recusal (that is, the removal of Judge Peck from hearing these issues) is still extant. I am spared having to say too much about the plaintiffs’ lawyers by my self-imposed rule which bars overt criticism of identifiable individuals in eDiscovery – I am happy to damn with faint praise (if you are unfamiliar with that expression see the penultimate sentence of this article), to attack whole classes, or to balance negative comments with something more positive, but there are no half-measures or mitigating factors here, so it is best to keep my mouth shut – well, not my mouth, perhaps, but at least to be restrained in what I write. Read the rest of this entry »