Legal

According to U.S. Magistrate Judge Andrew Peck of Manhattan federal court, it's a well-established fact that computers do a better job than human beings in reviewing electronically stored information for discovery production. In a landmark e-discovery decision last Friday, the judge cited a study that concluded technology-assisted review is more accurate -- and 50 times more economical -- than "exhaustive manual review."

Despite the efficiencies of using artificial intelligence to cull through millions of electronically stored documents -- and even though keyword searches have become standard in e-discovery review -- courts have been notably reluctant to endorse the process known as predictive coding. In this process, a screening program is revised and rerevised to refine subsequent searches to find a higer percentage of relevant documents than ordinary keyword-based review. Peck wrote that judges and parties have been concerned about being the first to produce discovery by way of predictive coding, for fear that the document production process wouldn't hold up to scrutiny. Plaintiffs have also worried that defendants would tamper with search parameters to hide potentially relevant documents.

Peck, however, has been outspoken about the potential benefits of predictive coding. In an article last October he said that computer-assisted coding should be used "in those cases where it will help 'secure the just, speedy, and inexpensive' determination of cases in our e-discovery world." So when a putative employment gender discrimination class action against the advertising conglomerate Publicis Groupe and its U.S. public relations subsidiary MSL Group landed before him -- and both sides expressed willingness to use predictive coding -- the judge jumped at the opportunity.

"The court recognizes that computer-assisted review is not a magic, Staples-Easy-Button, solution appropriate for all cases," Peck wrote. But in this case, which involves sorting some 3 million documents, he said, "the court determined that the use of predictive coding was appropriate considering: (1) the parties' agreement, (2) the vast amount of ESI to be reviewed (over three million documents), (3) the superiority of computer-assisted review to the available alternatives (i.e., linear manual review or keyword searches), (4) the need for cost effectiveness and proportionality, ... and (5) the transparent process proposed by MSL."

The judge swatted down certain limits MSL tried to place on the process, holding that it doesn't make sense to restrict in advance the number of screenings to be performed or the number of responsive documents to be turned over to the class. He also rejected concerns expressed by class counsel at Sanford Wittels & Heisler, noting that he'll be closely supervising the computer-assisted review. "The idea is not to make this perfect, it's not going to be perfect," he told the parties. "The idea is to make it significantly better than the alternatives without nearly as much cost."

"What the bar should take away from this opinion," Peck concluded, "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."

In a client alert, Wachtell, Lipton, Rosen & Katz counsel Maura Grossman, an e-discovery expert, said Peck's ruling "should pave the way for wide acceptance of the use of technology-assisted document review in major civil litigation and rein in the costs of document production in federal court suits."

Class counsel at Sanford Wittels sent an email comment via a firm spokesperson. "In employment discrimination cases such as this one, where the vast majority of relevant evidence is controlled by the defendant-employer, adopting a search methodology that lacks clearly defined reliability standards is tantamount to allowing the fox to guard the henhouse," it said in part. " believe that, despite Magistrate Judge Peck's apparent eagerness to issue the first opinion endorsing predictive coding, his decision to accept defendant's standardless ESI protocol will ultimately prove to be a setback to the federal judiciary's potential acceptance of predictive coding as a reliable discovery search method."

MSL's lawyer, Brett Anders of Jackson Lewis, referred a call to a Publicis spokesman, who didn't get back to me. Morgan, Lewis & Bockius represents Publicis.

(This blog post was updated to add comment from class counsel.)

(Reporting by Alison Frankel)