In his recent opinion in Da Silva Moore v. Publicis Group, Case 1:11-cv-01279-ALC-AJP (S.D.N.Y.), Judge Peck has for the first time judicially accepted the use of computer-assisted review/predictive coding (CAR/PC) tools in an ongoing litigation matter. Despite the buzz and apparent popularity of CAR/PC over the last few years, the two most common questions raised over, and presumably hindering, its use has been: (1) is there judicial acceptance (i.e., is it defensible)? and (2) how easy is it to use? With his recent opinion, Judge Peck has effectively answered one of those questions when he recognized that “computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.” Id. at 2.
In Da Silva Moore the parties submitted final versions of their CAR/PC protocol on 17-Feb, Judge Peck issued a written stipulation and order last week on 22-Feb essentially accepting defendant’s general CAR/PC protocol, which plaintiffs promptly objected to (the gist of their objections were essentially defendant’s protocol were not transparent enough). While Judge Peck’s order this past Friday did address plaintiff’s objections, I wanted to use this space to summarize some of the key takeaways from his opinion vis-à-vis the use of CAR/PC going forward.
- The Court did not order use of CAR/PC but is accepting its use – “[T]he Court did not order the parties to use predictive coding. The parties had agreed to defendants’ use of it, but had disputes over the scope and implementation, which the Court ruled on, thus accepting the use of computer-assisted review in this lawsuit.” Id. at 2, fn.1.
- The parties must do what is reasonable and proportionate under the circumstances, and not meet some standard of perfection – This is position is codified in FRCP 1 and 26 taken together. “While this Court recognizes that computer-assisted review is not perfect, the Federal Rules of Civil Procedure do not require perfection…. Courts and litigants must be cognizant of the aim of Rule 1, to ‘secure the just, speedy, and inexpensive determination’ of lawsuits…. That goal is further reinforced by the proportionality doctrine set forth in Rule 26(b)(2)(C).” Id. at 21-22.
- The Court endorsed usage of the Sedona Cooperation Proclamation model – “[T]he best approach to the use of computer-assisted coding is to follow the Sedona Cooperation Proclamation model. Advise opposing counsel that you plan to use computer-assisted coding and seek agreement, if you cannot, consider whether to abandon predictive coding for that case or go to the court for advance approval.” Id. at 5.
- Both parties will have to review a “seed” set – “I’m also saying to the defendants … [i]f you do predictive coding, you are going to have to give your seed set, including the seed documents marked as nonresponsive to the plaintiff’s counsel so they can say, well, of course you are not getting any [relevant] documents, you’re not appropriately training the computer.” Id. at 6. NOTE: the parties agreed to do this in Da Silva Moore, but only after first removing privileged documents.
- CAR/PC can be expensive – Defendant’s wanted to only produce the top 40,000 documents (which would have cost them $5/doc or $200,000). The Court rejected that by saying “where [the] line will be drawn [as to review and production] is going to depend on what the statistics show for the results … if stopping at 40,000 is going to leave a tremendous number of likely highly responsive documents unproduced, [defendant’s proposed cutoff] doesn’t work.” Id. at 6. “While cost is a factor under Rule 26(b)(2)(C), it cannot be considered in isolation from the results of the predictive coding process and the amount at issue in the litigation.” Id. at 24. “Staging of discovery by starting with the most likely to be relevant sources (including custodians), without prejudice to the requesting party seeking more after conclusion of that first stage review, is a way to control discovery costs.” Id.
- CAR/PC is not meant for all cases, but should be used in “appropriate” cases – “Computer-assisted review appears to be better than the available alternatives and thus should be used in appropriate cases.… In this case, the Court determined that the use of predictive coding was appropriate considering: (1) the parties’ agreement, (2) the vast amount of ESI to be reviewed (over three million documents), (3) the superiority of computer-assisted review to the available alternatives (i.e., linear manual review or keyword searches), (4) the need for cost-effectiveness and proportionality under Rule 26(b)(2)(C), and (5) the transparent process proposed by [defendant].” Id. at 21-22.
Despite the significance of this ruling it’s also important to not lose context. Da Silva Moore is an ongoing matter and as such, may yet yield additional rulings that may further clarify Judge Peck’s positions on CAR/PC. Further, there are other judges and cases out there that may further define the use of CAR/PC tools (see e.g., Kleen Products v. Packaging Corporation of America currently being argued in the Northern District of Illinois where plaintiffs are arguing the court should order defendants to use CAR/PC tools in lieu of keywords).
That said, Judge Peck’s view of the use of CAR/PC is consistent with Pangea3’s view of the same. We embrace and encourage the use of CAR/PC tools when appropriate and believe its use can be a very effective tool when correctly applied. Further, Pangea3 concurs with the position Judge Peck has stated in previous articles and strongly implies in the Da Silva Moore opinion, namely the question of defensibility RE: CAR/PC does not turn on the type of technology used, but rather on the process surrounding use of that technology. To that end, Pangea3 has developed its own CAR/PC protocol that has already incorporated some of the thoughts Judge Peck has articulated in Da Silva Moore, and that Pangea3 applies regardless of the CAR/PC technology utilized. Our documented protocol ensures a consistent, repeatable and therefore we believe, defensible, process governing the application and use of CAR/PC within the review structure. Finally, we believe that our basic review/QC/QA methodology is tailor-made for use with this technology (i.e., our QC/QA process results in a more accurate “seed” set than would otherwise occur without our built-in checks and balances).
Leave a Comment February 29, 2012