The terms of the plaintiff’s Objections to Judge Peck’s predictive coding opinion in Da Silva Moore v Publicis Groupe deprive the commentators of anything useful to say. It is not merely that the decision goes into limbo pending the District Judge’s ruling, but that 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.
It is not that comment has dried up completely – we’re still seeing sober updates from people whose judgment can be trusted, like eDiscovery Journal and Katey Wood. The only wholly new intervention of value comes in an article from Sandra Serkes at Valora who recognises the common interest of everyone concerned in a rational outcome. My use of the word “rational” connotes nothing partisan – it is the collective good which concerns me, not the fate of either party in the case itself.
There seems to be a parallel agenda running in some quarters, remote from the case itself, with motivation one can only guess at.
I wrote an article on 24 February called In which De Silva Moore brings out the Anglo-Saxon Demotic me which ended thus:
I am, anyway, too busy banging my head against the desk after reading the Declaration of the plaintiff’s expert witness in support of their objection. How have we come to this? I give no view on the propriety of the Objection or on the content of the Declaration. I am just wondering what it has all got to do with the “just, speedy and inexpensive” requirement of Rule 1 of the Federal Rules of Civil Procedure, with proportionality, with the obligation of cooperation imposed by the rules and expressly required by the judge, and with the evidence on which this case will turn.
Feedback suggests that my use of the word “demotic” requires some explanation. Strictly, it is an adjective meaning popular or vulgar. It has acquired the informal status of a noun referring to the language or habits of the horny-handed sons of toil. One of the hallmarks of Anglo-Saxon is short, stubby words which make their point without frills or any attempt at elegance, and my headline therefore referred to the sort of language you might expect from a sailor at closing time at a bar in Leith. I have muttered a few more words of that kind on this subject over recent days.
Of the 112 articles sitting in my “must read” folder, many relate to Da Silva Moore. With one or two exceptions with longer-term value, I propose to archive them all until there is something new and useful to say about this case. There is plenty else to write about.