It’s happened: In a landmark e-discovery ruling, a federal judge has explicitly approved of computer-assisted review, also known as predictive coding (the use of sophisticated algorithms to enable a computer to determine relevance based on training by a human reviewer), to search for potentially responsive electronically stored information, or ESI.
Magistrate Judge Andrew Peck, of the Southern District of New York, concluded “that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases” in Monique Da Silva Moore, et al. v. Publicis Groupe & MSL Group, a gender-discrimination case.
There were various e-discovery disputes in the case with respect to about 3 million electronic records. Issues that were addressed related to custodians, sources of ESI, and the predictive-coding protocol.
Ultimately, Peck’s decision to allow computer-assisted review in this case was “relatively easy” because the parties agreed to its use (even though they argued about how it should be implemented).
Peck recognized that such e-discovery review is “not a magic, Staples-Easy-Button, solution appropriate for all cases.” Instead, predictive coding “exists and should be used where appropriate, but is not a case of machine replacing humans; it is the process used and the interaction of man and machine that the courts need to examine.”
And at the end of the day, Peck wrote, the “goal is for the review method to result in higher recall and higher precision than another review method, at a cost proportionate to the ‘value’ of the case.”
A more difficult case would be one where the parties do not agree on computer-assisted review, as Peck noted. But he also noted that manual review is not the “gold standard” as shown by statistical studies. He also found the way that lawyers have chosen predictive-coding keywords have not made them tremendously reliable in harvesting relevant ESI.
So, Peck believes that computer-assisted review appears “to be better than the available alternatives, and thus should be used for appropriate cases.”
We now have a judicial decision that approves of the use of computer-assisted review. However, the decision itself notes that it does not mean predictive coding must be used in all e-discovery cases.
Rather, Peck states that the take-away from the decision 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 for document review.”
Well said. And if Peck’s e-discovery decision were not clear enough, it closes by proclaiming that “computer-assisted review now can be considered judicially-approved for use in appropriate cases.”
Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP (http://www.duanemorris.com) where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is http://www.sinrodlaw.com and he can be reached at firstname.lastname@example.org. To receive a weekly email link to Mr. Sinrod’s columns, please send an email to him with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.