eDiscovery Daily Blog

• October 24, 2011

 

There are a handful of judges whose pronouncements on anything eDiscovery-related are bound to get legal technologists talking. Judge Andrew Peck, United States magistrate judge for the Southern District of New York is one of them. His recent article, Search, Forward, published in Law Technology News, is one of the few judicial pronouncements on the use of predictive coding and has sparked a lively debate.

To date there is no reported case tackling the use of advanced computer-assisted search technology (“predictive coding” in the current vernacular) despite growing hype. Many litigators are hoping that judges will soon weigh in and give the profession some real guidance on the use of predictive coding in litigation. Peck says it will likely be a long time before a definitive statement come from the bench, but in the meantime his article provides perhaps the best insight into at least one judge’s thinking.

Judge Peck is probably best known in eDiscovery circles for the March 19, 2009 decision, William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Co., 256 F.R.D. 134, 136 (S.D.N.Y. 2009) (Peck, M.J.). In it, he called for "careful thought, quality control, testing and cooperation with opposing counsel in designing search terms or 'keywords' to be used to produce emails or other electronically stored information".

Peck notes that lawyers are not eager to take the results of computer review before a judge and face possible rejection. However, he says those fears are misplaced, that admissibility is defined by content of a document, not how it was found. Peck also relies heavily on research we have discussed on this blog, including the TREC Legal Track, to argue that advanced search technology can provide defensible search methods.

While he stops short of green lighting the use of such technology, he does encourage lawyers in this direction. “Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval,” he writes. “In my opinion, computer-assisted coding should be used in those cases where it will help ‘secure the just, speedy, and inexpensive’ (Fed. R. Civ. P. 1) determination of cases in our e-discovery world.”

Silicon Valley consultant Mark Michels agrees with Peck’s article writing in Law Technology News that, “the key to (predictive coding’s) defensibility is upfront preparation to ensure that the applied tools and techniques are subject to thoughtful quality control during the review process.”

But other commenters are quick to point out the limitations of predictive coding. Ralph Losey expands on Peck’s argument, describing specific and defensible deployment of predictive coding (or Artificial Intelligence in Losey’s piece). He says predictive coding can speed up the process, but that the failure rate is still too high. Losey points out “the state of technology and law today still requires eyeballs on all ESI before it goes out the door and into the hands of the enemy,” he writes. “The negative consequences of disclosure of secrets, especially attorney-client privilege and work product privilege secrets, is simply too high.”

Judge Peck’s article is just one sign that thoughtful, technology-assisted review be deployed in litigation. Tomorrow, we will review some darker musings on the likelihood that predictive coding will save eDiscovery from the exploding universe of discoverable data.

So, what do you think? Is predictive coding ready for prime time?  Can lawyers confidently take results from new search technology before a judge without fear of rejection? Please share any comments you might have or if you'd like to know more about a particular topic.