Federal Court Affirms Judge Peck’s Predictive Coding Order

Judge Carter

When last we left the case of Da Silva Moore v. Publicis Groupe–the groundbreaking case in which U.S. Magistrate Judge Andrew J. Peck issued the first judicial opinion to endorse the use of computer-assisted review and predictive coding–it was headed for review by U.S. District Judge Andrew L. Carter Jr. Now, thanks to a heads-up from Evan Koblentz at Law Technology News, we learn that Judge Carter has issued his ruling and has adopted Judge Peck’s opinion.

“The Court adopts Judge Peck’s rulings because they are well reasoned and they consider the potential advantages and pitfalls of the predictive coding software,” Judge Carter wrote in an opinion filed today.

In challenging Judge Peck’s order, the plaintiffs had argued that he had mischaracterized and confused the issue of whether they had consented to the use of predictive coding. Judge Carter concluded that any such confusion was immaterial.

The confusion is immaterial because the ESI protocol contains standards for measuring the reliability of the process and the protocol builds in levels of participation by Plaintiffs. It provides that the search methods will be carefully crafted and tested for quality assurance, with Plaintiffs participating in their implementation. For example, Plaintiffs’ counsel may provide keywords and review the documents and the issue coding before the production is made. If there is a concern with the relevance of the culled documents, the parties may raise the issue before Judge Peck before the final production. Further, upon the receipt of the production, if Plaintiffs determine that they are missing relevant documents, they may revisit the issue of whether the software is the best method.

Plaintiffs also challenged Judge Peck’s order on the ground that predictive coding is not a reliable method. Judge Carter ruled that this issue is also premature. As the litigation continues, if the parties believe the predictive coding software is flawed or that the process produces incomplete results, they can raise their concerns with Judge Peck and ask him to reconsider, Judge Carter noted. “To call the method unreliable at this stage is speculative.”

There simply is no review tool that guarantees perfection. The parties and Judge Peck have acknowledged that there are risks inherent in any method of reviewing electronic documents. Manual review with keyword searches is costly, though appropriate in certain situations. However, even if all parties here were willing to entertain the notion of manually reviewing the documents, such review is prone to human error and marred with inconsistencies from the various attorneys’ determination of whether a document is responsive. Judge Peck concluded that under the circumstances ofthis particular case, the use of the 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.

As to that secondary issue I mentioned in an earlier blog post–whether Rule 702 and Daubert apply to a court’s acceptance of a predictive-coding protocol–Judge Carter made short work of that. In a footnote, he wrote: “The Court adopts Judge Peck’s analysis of Rule 26(g) and Fed. R. Evidence 702 for similar reasons provided in his written opinion.”

Thus, Judge Peck’s predictive coding order has stood its ground and, with Judge Carter’s adoption of his reasoning, the use of predictive coding has taken another giant step towards the mainstream.


About Bob Ambrogi

Bob is known internationally for his expertise in the Internet and legal technology. He held the top editorial positions at the two leading national U.S. legal newspapers, the National Law Journal and Lawyers USA. A long-time advisor to Catalyst, Bob now divides his time between law practice and media consulting. He writes two blogs, LawSites and MediaLaw, co-authors Law.com's Legal Blog Watch, and co-hosts the weekly legal-affairs podcast Lawyer2Lawyer. A 1980 graduate of Boston College Law School, Bob is a life member of the Massachusetts Bar Foundation and an active member of the Massachusetts Bar Association, which honored him in 1994 with its President's Award.