Electronic Discovery Law

Da Silva Moore v. Publicis Groupe SA, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Apr. 25, 2012)

In a much anticipated opinion, District Court Judge Andrew L. Carter, Jr. has denied the objections of Plaintiffs and upheld Magistrate Judge Peck’s orders approving Defendant’s use of predictive coding to review its own documents and adopting Defendant's proposed protocol.

In this case, as has been discussed previously on this blog, Magistrate Judge Andrew Peck approved the use of predictive coding and largely adopted Defendant's then-proposed protocol over Plaintiffs’ objections.

Upon review of those objections, the District Court upheld the orders of Magistrate Judge Peck.  In so doing, the court acknowledged the highly deferential standard to which its review was subject.  Summarizing broadly, the court indicated several reasons for its decision, including that Magistrate Judge Peck’s rulings were “well reasoned” and considered both the “potential advantages and pitfalls of the predictive coding software;” that the protocol contained standards for measuring reliability and allowed for Plaintiffs’ participation; that there was “insufficient evidence to conclude that the use of the predictive coding software [would] deny Plaintiffs access to liberal discovery;” and that Plaintiffs’ arguments concerning reliability were “premature.”  Specifically as to Plaintiffs’ objections based on reliability, the court assured Plaintiffs that “[i]f the method provided in the protocol does not work or if the sample size is indeed too small to properly apply the technology, the Court will not preclude Plaintiffs from receiving relevant information, but to call the method unreliable at this stage is speculative.”  Similarly, the court noted several times that Plaintiffs would be allowed to raise their concerns regarding the success of the approved methodology before the court.

Closing its discussion of predictive coding, the court noted that there is “no review tool that guarantees perfection” and that the parties and Magistrate Judge Peck have acknowledged that “there are risks inherent in any method of reviewing electronic documents.”  Thus, the court concluded:

Judge Peck concluded that under the circumstances of this particular case, the use of predictive coding software as specified in the ESI protocol is more appropriate than keyword searching.  The Court does not find a basis to hold that his conclusion is clearly erroneous or contrary to law.  Thus, Judge Peck’s orders are adopted and Plaintiffs’ objections are denied.

The court also declined to reject Magistrate Judge Peck’s rulings concerning production of W-2s.

A copy of the court’s order is available here.