One of the more intriguing aspects surrounding the use of predictive coding technology in the Da Silva Moore v. Publicis Groupe case involves the role courts should play in guarding against the use of unreliable expert testimony in eDiscovery. In Da Silva Moore, the plaintiffs argued that the court abdicated its gatekeeper role under Federal Rule of Evidence 702 and the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) by not soliciting expert testimony to assess the reliability of the defendant’s predictive coding technology. That argument was ultimately rejected by the court, which held that Rule 702 and Daubert determine “admissibility of evidence at trial” and are “not applicable to how documents are searched for and found in discovery.”
While the Da Silva Moore decision appears to foreclose the use of Rule 702 and Daubert in eDiscovery, that view is not universally shared across the spectrum of American jurisprudence. Notably, in United States v. O’Keefe, 537 F.Supp.2d 14 (D.D.C. 2008), that court took a different approach. It found that a litigant must satisfy Rule 702 should it wish to challenge the propriety of an opposing party’s search terms in a discovery motion. This view was also embraced in Victor Stanley v. Creative Pipe, 250 F.R.D. 251 (D. Md. 2008). The Victor Stanley decision discussed how Rule 702 provides a useful framework for adjudicating complex factual eDiscovery questions such as the reliability of a particular “search and retrieval methodology” for electronically stored information (ESI).
These differing views regarding the application of Rule 702 and Daubert beg the question of what role (if any) they play in the discovery process. To understand this issue, it is worth examining the Daubert case and Rule 702 to determine whether, as the O’Keefe court so famously declared, complex eDiscovery search methodologies are really in a realm “where angels fear to tread.”
Daubert and Rule 702: The Trial Court as “Gatekeeper”
In Daubert, the Supreme Court held that the trial court has an important “gatekeeper” role under Rule 702 to ensure that only relevant, reliable scientific evidence that is helpful to a jury is admitted at trial. The Supreme Court provided a non-exclusive list of factors that a trial court could consider in determining whether a particular methodology was actually reliable. Those so-called Daubert factors were later found to apply “to all expert testimony, not just testimony based in science.”
Rule 702 was subsequently amended in 2000 to affirm the trial court’s gatekeeper function and to provide “some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony.” Rule 702 did not codify the Daubert factors. Instead, the Rule 702 standards were intended to guide the trial court to use “any or all of the specific Daubert factors where appropriate.” Thus, Daubert and Rule 702 work together to help trial courts assess the reliability of proffered expert testimony.
Does Rule 702 Apply to eDiscovery?
As it relates to eDiscovery, the question is: at what stage of the case do Daubert and Rule 702 apply? Like many legal questions, there does not appear to be a definitive answer. Indeed, the Advisory Committee Note to the 2000 Amendments to Rule 702 specifically declined to establish a precise procedural timetable for courts to exercise their “gatekeeping function over expert testimony.” Referring to instances where courts had applied the Daubert factors at both the summary judgment and in limine stages, the Advisory Committee reasoned that courts should be provided with “substantial discretion” to address Daubert related matters:
“Courts have shown considerable ingenuity and flexibility in considering challenges to expert testimony under Daubert, and it is contemplated that this will continue under the amended Rule.”
Rule 702 was thus designed to be “flexible” and provide courts with additional tools to scrutinize expert testimony on complex factual issues. Whether and when to do so, however, appear to be completely within the court’s discretion. It is therefore quite possible that a court could exercise its discretion to evaluate expert testimony on thorny pretrial matters such as eDiscovery.
How Could Daubert Affect Parties’ eDiscovery Efforts?
While there is no certainty that a party will have to satisfy Daubert to establish the reliability of its eDiscovery search and retrieval methodologies, organizations should still consider taking steps to be prepared. One preliminary step should include conducting research on the deployed eDiscovery technologies and the reliability of their supporting methodologies. Parties that do their homework and incorporate effective, enabling technologies into their eDiscovery process may be better situated to meet the Daubert standards and Rule 702. Moreover, such technologies, coupled with an effective eDiscovery response, will likely lead to more efficient and cost effective discovery. Such a realm is certainly where courts, clients and counsel – not just angels – are now daring to tread.