Ediscoverylawreview.com first discussed this emerging issue in its blog post on February 15, 2012. As anticipated, Magistrate Judge Peck issued an opinion detailing his reasons for authorizing the use of predictive coding in Da Silva Moore v. Publicis Group, No. 11-CV-1279 (S.D.N.Y. Feb. 25, 2012). Judge Peck’s position on predictive coding can be summarized by a single statement in his Opinion: “What the Bar should take away from this Opinion is that computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review.”
As Judge Peck noted, this Opinion appears to be the first wherein the Court approved predictive coding. He emphasized that while manual document reviews are still considered the “gold standard,” studies have shown that “computerized searches are at least as accurate, if not more so, than manual review.” Even keyword searches, in Judge Peck’s opinion, are the equivalent of a game of “Go Fish” because the “requesting party guesses which keywords might produce evidence to support its case without having much, if any, knowledge of the responding party’s ‘cards.’ i.e., the terminology used by the responding party’s custodians.”
Judge Peck listed five considerations in his approving the use of predictive coding:
(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 [the defendant].
Judge Peck particularly emphasized the importance of the transparency that the defendant used in its proposed ESI search protocol and the presence of e-discovery vendors at hearings to assist the Court in understanding various ESI issues.
While Judge Peck recognized that predictive coding was not appropriate in every case, he emphasized that it should be considered in large-scale matters. Importantly, he stated, “[c]ounsel no longer have to worry about being the ‘first’ or ‘guiena pig’ for judicial acceptance of computer-assisted review.” As he stated, predictive coding “now can be considered judicially-approved for use in appropriate cases.”
Predictive coding is a tool that should be examined and may be appropriate in a number of cases. It is important to involve counsel at the beginning of litigation so that document review tools, including predictive coding, can be considered for the matter and so that the company can be transparent – with the Court and its adversary – as to its e-discovery efforts.