Should the ‘Daubert’ Standard Apply to Predictive Coding? We May Know Soon

It’s been a month since U.S. Magistrate Judge Andrew J. Peck issued his seminal opinion on predictive coding, Da Silva Moore v. Publicis Groupe, and it continues to make waves. Notably, it appears that U.S. District Judge Andrew L. Carter Jr. will weigh in on the issue. On March 13, he entered an order granting plaintiffs’ request to submit additional briefing on their objections to Judge Peck’s order.

A key issue Judge Carter may need to address is one given short shrift in coverage of and commentary on Judge Peck’s opinion. Understandably, most of the commentary focused on the fact that Judge Peck’s opinion marked a milestone — the first judicial opinion to recognize that computer-assisted review is an acceptable way to search for electronically stored information.

But in the course of that opinion, Judge Peck made another significant ruling. He concluded that Federal Rule of Evidence 702 and the Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals do not apply to a court’s acceptance of a predictive-coding protocol.

Rule 702 and Daubert give trial judges the responsibility to act as “gatekeepers” to exclude unreliable scientific and technical expert testimony. Judge Peck reasoned that these did not apply to the Da Silva Moore case because no one was trying to put anything into evidence. Here is how he explained it:

If MSL sought to have its expert testify at trial and introduce the results of its ESI protocol into evidence, Daubert and Rule 702 would apply. Here, in contrast, the tens of thousands of emails that will be produced in discovery are not being offered into evidence at trial as the result of a scientific process or otherwise. The admissibility of specific emails at trial will depend upon each email itself (for example, whether it is hearsay, or a business record or party admission), not how it was found during discovery.

Rule 702 and Daubert simply are not applicable to how documents are searched for and found in discovery.

You may recall that before Judge Peck issued his written opinion in this case on Feb. 22, he made oral rulings at the motion hearing on Feb. 8. On Feb. 22, just as Judge Peck was issuing his written opinion, the plaintiffs filed objections to his Feb. 8 rulings. One of their central arguments was that Judge Peck erred in disregarding his gatekeeper role under Daubert.

Because predictive coding is a new and novel technology, they argued, Judge Peck should have required expert testimony regarding its reliability or appropriateness. They cite Magistrate Judge Paul Grimm’s well-known ruling in Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 260 n.10 (D. Md. 2008), where he said, “[R]esolving contested issues of whether a particular search and information retrieval method was appropriate … involves scientific, technical or specialized information.” Relying on this, the plaintiffs argued:

[A]t no point did the Magistrate review any evidence to support his decision. The Magistrate took no judicial notice of any documents or studies that support the reliability of MSL’s method, nor did he receive any affidavits or declarations from purported experts that supported the methodology of MSL’s method. To his credit, the Magistrate did ask the parties to bring the ESI experts they had hired to advise them regarding the creation of an ESI protocol. These experts, however, were never sworn in, and thus the statements they made in court at the hearings were not sworn testimony made under penalty of perjury. The Magistrate judge never asked for or evaluated the qualifications of these experts, nor were the parties given an opportunity to question or cross-examine the experts in order for the Court to make a finding regarding the reliability of the experts’ opinions. Thus, the Magistrate’s decision relies only on the arguments made by counsel.

On March 7, the defendants responded to plaintiffs’ objections. With regard to the Daubert issue, they took the same position as Judge Peck–that Rule 702 and Daubert do not apply to the methods used to take discovery, but only kick in when evidence is presented at trial.

Plaintiffs simply are incorrect in their assertion that Victor Stanley requires expert testimony regarding the methodology selected by a party to search for electronically stored information. Rather, this case only requires that the selected methodology was carefully planned by qualified persons, contains provisions for quality assurance, and is supported by persons with the requisite qualifications and experience.

After receiving the defendants’ response, the plaintiffs wrote to Judge Carter on March 9 asking for leave to file their own response.

[W]hile Plaintiffs were denied an opportunity to respond to Magistrate Judge Peck’s written opinion, MSL had the benefit of filing its opposition approximately two weeks after the written opinion had been issued. Indeed, MSL’s opposition brief and supporting expert declarations not only reference, but also largely rely upon Magistrate Judge Peck’s observations regarding Plaintiffs’ Objection.

Judge Carter granted the plaintiffs’ request on March 13. (The brief was due March 19.) That means that we can expect him to issue a ruling of his own. It seems unavoidable that any ruling he issues will address the core issue of the appropriateness of computer-assisted review, at least in this case. Most likely, he will also have to address this secondary issue of the applicability of Daubert. If he does, in fact, squarely address these issues–and regardless of whether he agrees with Judge Peck–his ruling will be yet another milestone for predictive coding.


About Bob Ambrogi

A lawyer and veteran legal journalist, Bob advises Catalyst on strategic communications and marketing matters. He is also a practicing lawyer in Massachusetts and is the former editor-in-chief of The National Law Journal, Lawyers USA and Massachusetts Lawyers Weekly. A fellow of the College of Law Practice Management, he also writes the blog LawSites.

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