Contributing  Authors: Gil Keteltas and Jessica Nutt

Just as we were predicting that the disqualification side show in Da Silva Moore would “not prevent the district court from reaching the merits of the predictive coding dispute,” Judge Andrew Carter’s April 25th order adopted “Judge Peck’s rulings because they were well reasoned and they consider the potential advantages and pitfalls of the predictive coding software.”

The court applied a “highly deferential standard of review” to Judge Peck and, in what appears to be a clear response to plaintiffs’ motion to recuse, Judge Carter concluded:  “The Court reminds the parties that it affords Judge Peck’s non-dispositive rulings great deference and that magistrate judges generally have broad latitude with respect to discovery issues.”

As to the main event — the merits of predictive coding — Judge Carter focused on a few key points: 

  • The parties would have ample opportunity to assess the effectiveness of the use of predictive coding during the course of the litigation.  Judge Carter concluded it was premature to declare predictive coding ineffective (or effective) and that the parties could assess the effectiveness of technology-assisted review, just as they could assess the effectiveness of any review process.
  • Also, in a quote that will be repeated in briefs, the blogosphere, and marketing materials for would-be-predictive-coding software hawkers, Judge Carter noted that all review methods are imperfect:

There simply is no review tool that guarantees perfection. The parties and Judge Peck have acknowledged that there are risks inherent in any method of reviewing electronic documents. Manual review with keyword searches is costly, though appropriate in certain situations. However, even if all parties here were willing to entertain the notion of manually reviewing the documents, such review is prone to human error and marred with inconsistencies from the various attorneys’ determination of whether a document is responsive. Judge Peck concluded that under the circumstances of this particular case, the use of the predictive coding software as specified in the ESI protocol is more appropriate than keyword searching. The Court does not find a basis to hold that his conclusion is clearly erroneous or contrary to law.

Stay tuned, this is just the beginning.  As we noted in our prior posts, the stage is now set for future battles assessing the reliability of technology-assisted review in practice.