e-discovery 2.0

The other shoe dropped in the Da Silva Moore v. Publicis Groupe case this week as the plaintiffs filed their objections to a preliminary eDiscovery order addressing predictive coding technology. In challenging the order issued by the Honorable Andrew J. Peck, the plaintiffs argue that the protocol will not provide an appropriate level of transparency into the predictive coding process. In particular, the plaintiffs assert that the ordered process does not establish “the necessary standards” and “quality assurance” levels required to satisfy Federal Rule of Civil Procedure 26(b)(1) and Federal Rule  of Evidence 702.

The Rule 26(b) Relevance Standard

With respect to the relevance standard under Rule 26, plaintiffs maintain that there are no objective criteria to establish that defendant’s predictive coding technology will reliably “capture a sufficient number of relevant documents from the total universe of documents in existence.” Unless the technology’s “search methodologies” are “carefully crafted and tested for quality assurance,” there is risk that the defined protocol could “exclude a large number of responsive email” from the defendant’s production. This, plaintiffs assert, is not acceptable in an employment discrimination matter where liberal discovery is typically the order of the day.

Reliability under Rule 702

The plaintiffs also contend that the court abdicated its gatekeeper role under Rule 702 and the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals by not soliciting expert testimony to assess the reliability of the defendant’s predictive coding technology. Such testimony is particularly necessary in this instance, plaintiffs argue, where the technology at issue is new and untested by the judiciary. To support their position, the plaintiffs filed a declaration from their expert witness that challenges its reliability. Relying on that declaration, the plaintiffs complain that the process lacks “explicit and defined standards.” According to the plaintiffs, such standards would typically include “calculations . . . to determine whether the system is accurate in identifying responsive documents.” They would also include “the standard of acceptance that they are trying to achieve,” i.e., whether the defendant’s “method actually works.”  Plaintiffs conclude that without such “quality assurance measurements in place to determine whether the methodology is reliable,” the current predictive coding process is “fundamentally flawed” and should be rejected.

Wait and See

Now that the plaintiffs have filed their objections, the eDiscovery world must now wait and see what will happen next. The defendant will certainly respond in kind, vigorously defending the ordered process with declarations from its own experts. Whether the plaintiffs or the defendant will carry the day depends on how the district court views these issues, particularly the issue of transparency. Simply put, the question is whether the process at issue is sufficiently transparent to satisfy Rule 26 and Rule 702? That is the proverbial $64,000 question as we wait and see how this issue plays out in the courts over the coming weeks and months.