In the jaws of e-discovery

The Great White Shark which terrorised the fictional seaside resort of Amity in the 1970s was a classic of its time and of its type.

There have been a number of follow up films, none anything like as good as the original because now everyone knows the plot.

Nonetheless this means that I do not need to recite the story for readers to understand what I am talking about. For some weeks now, I have been writing about predictive coding and in particular the court of His Honour Judge Peck in New York. Most recently, Judge Peck has been considering the case of Monique Da Silva Moore, et al v Publicis Groupe and MSL Group.

In my previous piece entitled Predictive Future on 23rd February I referred to the fact that Judge Peck was due to write an opinion on the subject of predictive coding in that case, and he has now promulgated his views. The interpretation of what he said has not been without controversy as can be seen from, for example, an item on that same date in Clearwell’s e-Discovery 2.0 blog,  Judge Peck Issues Order Addressing “Joint Predictive Coding Protocol” in Da Silva Moore eDiscovery Case.

Now, I have always taken the view that no judge will ever endorse a particular provider or a particular technology. The best that can be hoped for is that a court will say that a particular procedure is one to be considered and in the appropriate circumstances one which it may be right to adopt.

But Judge Peck has gone further. There are a number of websites which feature what he says but I am indebted to Darryl Shetterly of LeClair Ryan for a link to the following via Twitter:  In A Milestone for Predictive Coding, Judge Peck Says, ‘Go Ahead, Dive In!’ [Catalyst blog, Bob Ambrogi,  27th February, 2012 ]. The author describes the judge’s opinion as “the first judicial opinion in which the court has expressly approved the use of computer assisted review.”

Judge Peck also answers the question, what does this mean for e-discovery.

He says, and I quote from the article:

What This Means for E-Discovery

No one need wonder what this opinion means for the future of e-discovery, because Judge Peck answers that question himself.

The opinion does not mean that computer-assisted review must be used in all cases, he says. Nor should the opinion be considered an endorsement of any particular vendor or of any particular review tool.

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. Counsel no longer have to worry about being the “first” or “guinea pig” for judicial acceptance of computer-assisted review. As with keywords or any other technological solution to e-discovery, counsel must design an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant ESI while adhering to Rule 1 and Rule 26(b)(2)(C) proportionality. Computer-assisted review now can be considered judicially-approved for use in appropriate cases.

I accept and acknowledge that this is a New York case and I am not saying that precisely the same would happen in the High Court in England in similar circumstances, but one has to wonder what is wrong with the notion that computer assisted review is an available tool in the armoury of a litigation lawyer and that its use should be seriously considered where there is a large amount of data. That proposition seems unobjectionable to me!

Bob Ambrogi concludes his article by saying that in effect the judge is saying “come on in, the water is lovely!” And why should an English judge take a different view?