Go away for a few days and when you come back it often takes an inordinate amount of time to catch up with developments. It is always the same and this time is no different.
I left you with thoughts on Va Va Voom (Voom HD Holdings LLC v EchoStar Satellite LLC Index M 1748 and M 1833, 600292/08.) and the prospect of Judge Peck’s opinion in Monique Da Silva Moore, et al v Publicis Groupe and MSL Group and come back to find that the blogosphere is buzzing with views on what was actually decided in that case and news of another case on predictive coding in an antitrust matter called Kleen Products LLC v Packaging Corporation of America.
Fortunately I am confident that I can adopt a policy of wait and see here. In Da Silva, the transcript I have seen makes it clear that the parties had agreed to use predictive coding but could not agree what form the predictive coding should take. I hope that Judge Peck’s promised opinion will clarify matters for the parties as well as providing guidance to the rest of us.
In Kleen, it seems that we have the novel situation where one party is seeking an order from Judge Nan Nolan in Illinois to compel the other party to use predictive coding. We do not know what the judge will decide but it would fly in the face of the views of most commentators (including me) if the judge were to go so far as to make the desired order and compel a party to use a particular technology.
Predicting the future is never easy, so for the time being I will wait and see.