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It seems like just days ago I was celebrating Judge Peck’s approval of computer-assisted review of documents to identify those responsive to discovery requests. You too? Well, take off your party hat — Computer-assisted review, specifically Judge Peck’s endorsement of a predictive coding protocol, is under review.
**BREAKING NEWS!** Get the latest at the end of this article.**
In my last post, I explained that Judge Andrew J. Peck, U.S.M.J., author of e-discovery articles and an e-discovery advocate, opined with regard to a discovery dispute in connection with Moore v. Publicis. Therein, plaintiffs allege that defendants, Publicis Groupe & MSL Group, engaged in systematic, company-wide gender discrimination against female employees by limiting women to entry-level positions. Counsel sought to cull discovery responsive to plaintiffs’ first round of requests from three million electronic documents using predictive coding technology.
Predictive coding technology is a type of computer-assisted review that uses one or a combination of computer functions to identify responsive documents. Judge Peck’s Search, Forward describes a typical protocol: First, senior counsel chooses “seed set” documents. Specialized software identifies properties of those documents and uses them to select other similar documents from the discovery pool. As the senior reviewer codes more sample documents, the computer predicts the reviewer’s coding (or asks for feedback.) When the computer’s predictions and the reviewer’s coding sufficiently coincide, the computer has learned enough to confidently review the remaining documents.
On February 8, 2012, counsel for parties in Moore v. Publicis appeared before Judge Peck to discuss computer-assisted review, in particular, predictive coding technology. Judge Peck approved the use of computer assistance and asked the parties to submit a draft protocol for his approval.
Plaintiffs strongly objected to defendants’ submitted protocol. In particular, plaintiffs argued that the use of “predictive coding” violates Federal Rule 26(b)(2)(C) and criticized the Court’s adoption of a novel method of discovery without supporting evidence or procedures for assessing reliability. Plaintiffs raised other contentions as well. However, on February 24, 2012, Judge Peck issued a written opinion memorializing his approval of computer-assisted discovery and defendants’ protocol. Only then, on March 7, 2012, did defendants file their response to plaintiffs’ protestations.
Two days latter, plaintiffs put their stilettos down. Counsel wrote to District Court Judge Andrew L. Carter, Jr. asking to file a reply. They argued that Judge Peck’s written ruling, issued only two days after plaintiffs’ objections were filed, addressed their objections without proving an opportunity for plaintiffs to explain and defend same. Moreover, defendants were able to consider Judge Peck’s analysis before responding to plaintiffs’ objections. Plaintiffs wanted the opportunity to “squarely address Magistrate Judge Peck’s complete rulings.” On March 13, 2012, Judge Carter granted plaintiffs’ request and ordered that their reply be submitted by March 19, 2012.
Plaintiffs’ Carter-sanctioned reply was filed on March 19, 2012. It’s a good read — seriously — so I won’t give everything away. Here are a few highlights:
1. Plaintiffs warn that, although predictive coding technology may be useful in appropriate circumstances, the devil is in the details of the protocol. (I thought she was in Prada);
2. Judge Peck and defendants’ counsel are BFF;
4. Judge Peck’s opinion impermissibly relied on outdated, non-peer reviewed articles (including one of his own), and defense counsel’s blog entries;
5. Transparency and disclosure of the method used to cull discovery doesn’t guarantee that output will comply with Rule 26; and
6. It doesn’t matter how cool the technology is, if you can’t demonstrate the quality of its output.
E-discovery Lessons Learned?
In my last Moore v. Publicis post <insert link when posted>, I gave you the go-ahead to use computer-assisted review. I cautioned not to forget to design an appropriate process (which always includes quality control testing), based on a full consideration of the technology available. Judge Carter’s review of Judge Peck’s ruling will probably add a few requirements to my warning list.
Lesson learned: Acceptance of computer-assisted review will probably require a broad base of support in the legal community, not just the approval of a long-time advocate. Perhaps closer examination of proposed protocols, more specific requirements and guidelines, coupled with a little more time, will win some converts.
After filing their Carter-sanctioned reply on March 19, 2012, Plaintiffs sent a letter to Judge Peck in which they requested his recusal. On April 2, 2012, Judge Peck denied Plaintiffs’ accusations, stating that he had not discussed the case with Mr. Losey, Defendants’ attorney and e-discovery author-advocate, and did not endorse the e-discovery vendor’s products.
Judge Peck submitted that Plaintiffs knew of his favorable view of computer-assisted review technology — they should not have agreed to the protocol during the February 8, 2012 conference, then objected when Judge Peck made his opinion public.
Finally, Judge Peck warned that Plaintiffs’ protestations could discourage judges (and attorneys) from speaking on educational panels or supporting any developments in the legal/judicial system — and that Plaintiffs should carefully consider the consequences of their actions.
Check back with e-Lessons Learned to find out whether Plaintiffs have converted their letter into a motion for recusal. While you’re spending some quality time with the edge of your seat, here’s some advice on developing predictive coding protocols. You might need it in the wake of Moore v. Publicis.
Leah R. Glasofer, the eDiscoverista, received her B.A. in Environmental Policy from American University and J.D. from Seton Hall Law. Leah has clerked for captive counsel of a major insurance carrier, and also for Assignment Judge Yolanda Ciccone in Somerset County. She is now an associate at Graham Curtin, P.A. in Morristown, New Jersey. Leah concentrates her practice in litigation, with an emphasis on professional liability defense, insurance and personal injury defense, and employment.