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Beyond highlighting the evolving standards and complexities of
establishing a comprehensive e-discovery plan at the early stages
of a case, recent decisions in Da Silva Moore v. Publicis
Groupe (S.D.N.Y.), which approved a defendant's use of
predictive coding, could potentially have a Zubulake-type
effect of establishing new technology-driven norms for large-scale
document reviews in the future.
The Da Silva case was brought as a putative $100
million class and collective action where the plaintiffs alleged
they were subject to systemic gender discrimination in violation of
Title VII of the Civil Rights Act of 1964. Because of the
substantial volume of electronically stored information (ESI)
proposed to be collected by Publicis and its U.S.- based public
relations subsidiary, MSL Group, both parties had agreed to the
concept of using computer-assisted review. Sources of ESI were
identified, multiple phases of discovery were established, and a
detailed discovery protocol was ordered by the Court. Plaintiffs
later objected to the particulars of the predictive coding protocol
and even its use, arguing that it was unreliable and contrary to
F.R.E. 702 and the Supreme Court's Daubert
decision.
Predictive coding software uses sophisticated algorithms to
enable a computer to determine relevance based on how well the
documents match concepts and terms in "seed documents"
selected by human reviewers. Da Silva is one of the first
cases in the country in which a court has weighed in on the use of
predictive coding. Over the plaintiffs' objections to the
particulars of the protocol for the defendants' use of
predictive coding, Magistrate Judge Andrew Peck ordered a
particular protocol to be followed initially while preserving the
right of the plaintiffs to raise further issues based on the
results. The plaintiffs appealed to District Judge Andrew Carter,
arguing, among other things, that Magistrate Judge Peck's
public articles and speeches evidence a bias in favor of predictive
coding and the defense bar. Judge Carter rejected the appeal as
premature while echoing Magistrate Judge Peck's inclination to
accept predictive coding as a reasonable method to cull through
millions of pages of potentially relevant ESI.
Judge Carter took the same "wait and see" approach as
Magistrate Judge Peck regarding the reliability of the process,
explaining (1) the majority of documentary evidence has to be
produced by the defendants, (2) even if all parties were willing to
entertain the notion of manually reviewing the documents, such
review is prone to human error and marred with inconsistencies from
the determination by various attorneys of whether a document is
responsive, and (3) if the method provided in the protocol does not
work, or if the sample size is indeed too small to properly apply
the technology, the court will not preclude plaintiffs from
receiving additional relevant information. Nothing precluded the
plaintiffs from revisiting the issue of the software's efficacy
or reliability at a later phase in discovery, and thus, the
plaintiffs' arguments concerning the reliability of the method
were premature. Other courts seem to be following this trend
– see Global Aerospace, Inc. v. Landow Aviation
(state court in Virginia allowing defendants to use predictive
coding for processing and producing ESI – decided April
23, 2012).
While further lessons regarding the use and reliability of
predictive coding will likely be developed in Da Silva as
that case progresses, here are a few immediate takeaways:
Computer-assisted review may not be appropriate in all cases,
but given the need for cost effectiveness and proportionality under
F.R.C.P. 26(b)(2)(C) and (5), the parties should at least discuss
this type of review as an option in large data-volume cases.
Vendors and/or counsel should be able to explain complicated
e-discovery concepts in ways that make it easily understandable to
judges who may not be tech-savvy, and should be able to work with
opposing counsel to help determine the best ways to implement these
types of technologies.
To control discovery costs, consider staging discovery in
phases 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.
Click
here to view a copy of the district court's Opinion &
Order in Da Silva Moore v. Publicis Groupe, 11-civ-1279
(S.D.N.Y.), filed on April 26, 2012.
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