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
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
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
(Reporting by Alison Frankel)
Follow Alison on Twitter: @AlisonFrankel
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