In a decision that advances the predictive coding ball one step further, United States District Judge Andrew L. Carter, Jr. upheld Magistrate Judge Andrew Peck’s order in Da Silva Moore, et. al. v. Publicis Groupe, et. al. despite Plaintiff’s multiple objections. Although Judge Carter rejected all of Plaintiff’s arguments in favor of overturning Judge Peck’s predictive coding order, he did not rule on Plaintiff’s motion to recuse Judge Peck from the current proceedings – a matter that is expected to be addressed separately at a later time. Whether or not a successful recusal motion will alter this or any other rulings in the case remains to be seen.
Finding that it was within Judge Peck’s discretion to conclude that the use of predictive coding technology was appropriate “under the circumstances of this particular case,” Judge Carter summarized Plaintiff’s key arguments listed below and rejected each of them in his five-page Opinion and Order issued on April 26, 2012.
- the predictive coding method contemplated in the ESI protocol lacks generally accepted reliability standards,
- Judge Peck improperly relied on outside documentary evidence,
- Defendant MSLGroup’s (“MSL’s”) expert is biased because the use of predictive coding will reap financial benefits for his company,
- Judge Peck failed to hold an evidentiary hearing and adopted MSL’s version of the ESI protocol on an insufficient record and without proper Rule 702 consideration
Since Judge Peck’s earlier order is “non-dispositive,” Judge Carter identified and applied the “clearly erroneous or contrary to law” standard of review in rejecting Plaintiffs’ request to overturn the order. Central to Judge Carter’s reasoning is his assertion that any confusion regarding the ESI protocol is immaterial because the protocol “contains standards for measuring the reliability of the process and the protocol builds in levels of participation by Plaintiffs.” In other words, Judge Carter essentially dismisses Plaintiff’s concerns as premature on the grounds that the current protocol provides a system of checks and balances that protects both parties. To be clear, that doesn’t necessarily mean Plaintiffs won’t get a second bite of the apple if problems with MSL’s productions surface.
For now, however, Judge Carter seems to be saying that although Plaintiffs must live with the current order, they are by no means relinquishing their rights to a fair and just discovery process. In fact, the existing protocol allows Plaintiffs to actively participate in and monitor the entire process closely. For example, Judge Carter writes that, “if the predictive coding software is flawed or if Plaintiffs are not receiving the types of documents that should be produced, the parties are allowed to reconsider their methods and raise their concerns with the Magistrate Judge.”
Judge Carter also specifically addresses Plaintiff’s concerns related to statistical sampling techniques which could ultimately prove to be their meatiest argument. A key area of disagreement between the parties is whether or not MSL is reviewing enough documents to insure relevant documents are not completely overlooked even if this complex process is executed flawlessly. Addressing this point Judge Carter states that, “If the method provided in the protocol does not work or if the sample size is indeed too small to properly apply the technology, the Court will not preclude Plaintiffs from receiving relevant information, but to call the method unreliable at this stage is speculative.”
Although most practitioners are focused on seeing whether and how many of these novel predictive coding issues play out, it is important not to overlook two key nuggets of information lining Judge Carter’s Opinion and Order. First, Judge Carter’s statement that “[t]here simply is no review tool that guarantees perfection” serves as an acknowledgement that “reasonableness” is the standard by which discovery should be measured, not “perfection.” Second, Judge Carter’s acknowledgement that manual review with keyword searches may be appropriate in certain situations should serve as a wake-up call for those who think predictive coding technology will replace all predecessor technologies. To the contrary, predictive coding is a promising new tool to add to the litigator’s tool belt, but it is not necessarily a replacement for all other technology tools.
Plaintiffs in Da Silva Moore may not have received the ruling they were hoping for, but Judge Carter’s Opinion and Order makes it clear that the court house door has not been closed. Given the controversy surrounding this case, one can assume that Plaintiffs are likely to voice many of their concerns at a later date as discovery proceeds. In other words, don’t expect all of these issues to fade away without a fight.