The Da Silva Moore case is quickly becoming a landmark matter in the eDiscovery realm. The use of Technology-Assisted Review (TAR), specifically predictive coding, in the case is the subject of much scrutiny at the moment. eDiscoveryJournal has covered the case extensively, including being the first to note that early headlines got Judge Peck’s opinion wrong – he had not ordered the use of predictive coding in the case or endorsed the technology of any single vendor; he had simply approved of the defendant’s use of predictive coding in this case.
Now, plaintiff’s counsel is going after Judge Peck directly. Their point is that Judge Peck may not be impartial about the use of predictive coding as evidenced by improper, out-of-court meetings and public appearances with the defendants’ e-discovery counsel (Ralph Losey), frequent touting of predictive coding technology, and the fact that Peck has spoken at events sponsored by Recommind (the technology used by the defendants in the case). It is important to note that Recommind denies paying speaking fees or honoraria to Judge Peck.
I have heard Judge Peck speak on several occasions and he is always careful to not tout any particular technology. Rather, he talks about how the use of various technologies, when married with the right process and backed up by the right statistics, can be more effective than traditional approaches to eDiscovery search. To say that he touts predictive coding technology is really mincing words, in my opinion. In fact, Judge Peck makes the point that collaboration is the key when it comes to using TAR. The two sides must get together early in the case and agree on how it will be used. At LegalTech early this year, Peck made it a point to say that he did not see it as the Court’s responsibility to dig into algorithms or technology and approve specific one’s as viable. Rather, he expected the two parties to cooperate on the use of TAR. Memorably, much of the room chuckled at the word cooperate. This case illustrates why.
Litigation is inherently adversarial. To think that parties will cooperate extensively might be like believing a politician will simply admit to changing his/her position on an issue – it isn’t going to happen, at least not in a straightforward, clear-cut manner. Even in this case, he parties agreed to use TAR long before the February 8, 2012 hearing (the parties asked for Judge Peck’s approval early on). Their discovery disputes related to TAR are not whether they can or should use the advanced technology. Rather, the disputes relate to how to use the technology. I have to wonder if this case is going to need a court to actually rule on the specific technology, algorithms, and processes involved in predictive coding in order to get some resolution. And, even if that does happen, how many challenges will there be to such a ruling? Will this case simply be a blueprint about how to challenge the use of TAR in ways that can hold up a case indefinitely?
Perhaps this all comes back to the relative newness of TAR and the fact that there is a ton of confusion about what TAR is and how it used. Or, maybe this is simply about lawyers jockeying for position in this specific case. It’s probably a combination of both. No matter what, the market is now going to be looking at what kind of speaking events Judges participate in, how vendors market TAR and interpret judicial decisions for use in marketing materials, and what the incentives are of “experts” in various cases. From my non-lawyer perspective, this case seems sad – we are not focused on whether there was any gender discrimination. Instead, the case is now all about what methods a party can use to limit the universe of ESI produced. Through my eDiscovery lens, however, this case is exciting because it will help answer the question about how to best use TAR and may provide the impetus needed to inject some real cooperation between otherwise adversarial parties. I think it will also force the market to look more closely at the incentives for all involved in a case to use TAR and deal with those incentives (and the potential biases they might create) early on. As eDJ has always believed, that level of analysis is a good thing for the industry.
What do you think? Is Da Silva Moore becoming a landmark case? Please comment below.