Our Insights on eDiscovery

A few weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York issued an opinion accepting the use of computer-assisted review of electronically stored information for this case. However, on March 13, District Court Judge Andrew L. Carter, Jr. granted plaintiffs’ request to submit additional objections to the ruling and in that briefing, the plaintiffs claimed that the protocol approved for predictive coding “risks failing to capture a staggering 65% of the relevant documents” and questioned Judge Peck’s relationship with defense counsel and with the selected vendor for the case, Recommind. On Friday, April 13, the plaintiffs took things a step further by formally requesting the recusal of Judge Peck. Now, Judge Carter has issued an opinion and order in the case, upholding Judge Peck’s opinion approving computer-assisted review.

A few weeks ago, in Da Silva Moore v. Publicis Groupe & MSL Group, Magistrate Judge Andrew J. Peck issued an opinion making it the first case to accept the use of computer-assisted review of electronically stored information (“ESI”) for this case. Or, so we thought. Now, the plaintiff has objected to the plan and even formally requested the recusal of Judge Peck. Conversely, in Kleen Products LLC v. Packaging Corporation of America, et al., the plaintiffs have asked Magistrate Judge Nan Nolan to require the producing parties to employ a technology assisted review approach (referred to as “content-based advanced analytics,” or CBAA) in their production of documents for discovery purposes, and that request is currently being considered. Now, there’s a third case where the use of technology assisted review is actually being approved in an order by the judge.

The latest in in Da Silva Moore v. Publicis Groupe & MSL Group? This past Friday, April 13, the plaintiffs filed a formal motion for recusal of Magistrate Judge Andrew J. Peck of the U.S. District Court for the Southern District of New York after he issued an opinion approving the use of predictive coding in this case. So, what were the plaintiffs’ arguments for recusal?

We’ve covered the Da Silva Moore case quite a bit over the past few weeks, but that’s not the only case where technology assisted review is currently being considered and debated. On February 21, in Kleen Products LLC v. Packaging Corporation of America, et al., the plaintiffs asked Magistrate Judge Nan Nolan to require the producing parties to employ a technology assisted review approach (referred to as “content-based advanced analytics,” or CBAA) in their production of documents for discovery purposes.