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Magistrate Judge Peck Issues Written Opinion Addressing Computer-Assisted Review

Posted in CASE SUMMARIES

Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012)

Magistrate Judge Andrew Peck issued an opinion on Friday, February 24, 2012, approving of the use of computer-assisted review of electronically stored information (“ESI”) by the parties in this case.  The opinion, which discusses both the details of the underlying case and the topic of computer-assisted review more generally, addresses a myriad of issues including how computer-assisted review works (generally) and what benefits it may provide.  The court appears to be the first to recognize that “computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.” 

The first portion of the opinion deals largely with the specific details of the underlying case and the parties’ negotiation of an agreed protocol for the computer-assisted review.  While an agreed protocol was eventually signed by the court (and attached to the opinion), the court acknowledged the possibility that efforts beyond those memorialized in the parties’ protocol could be required and approved the parties’ proposed protocol, which included seven iterative “seeding” reviews, with the following caveat:

But if you get to the seventh round and [plaintiffs] are saying that the computer is still doing weird things, it’s not stabilized, etc., we need to do another round or two, either you will agree to that or you will both come in with the appropriate QC information and everything else and [may be ordered to] do another round or two or five or 500 or whatever it takes to stabilize the system.

Later, the opinion provides “Further Analysis and Lessons for the Future” in which several, more general topics surrounding computer-assisted review are addressed, including concerns about accuracy and the need for cooperation and transparency.

The court concludes that computer-assisted review, or predictive coding, is a tool that should be considered, along with existing and more established tools, in large volume ESI cases:

This Opinion appears to be the first in which a Court has approved of the use of computer-assisted review.  That does not mean computer-assisted review must be used in all cases, or that the exact ESI protocol approved here will be appropriate in all future cases that utilize computer-assisted review.  Nor does this Opinion endorse any vendor … nor any particular computer-assisted review tool.  What the Bar should take away from this Opinion 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.  As with keywords or any other technological solution to e-discovery, counsel must design an appropriate process, including use of available technology, with appropriate quality control testing, to review and produce relevant ESI while adhering to Rule 1 and Rule 26(b)(2)(C) proportionality.  Computer-assisted review now can be considered judicially-approved for use in appropriate cases.

Also of note in this opinion was the court’s clarification (in footnote 1 on page 2) that use of computer-assisted review in this case was agreed to by the parties and not ordered by the court and that the court’s involvement was instead focused on “disputes over the scope and implementation, which the court ruled on, thus accepting the use of computer assisted review in this lawsuit.”

A full copy of the opinion is available here.