Magistrate Judge Peck's Message to the Bar: Predictive Coding Should Be "Seriously Considered"

http://ow.ly/9rlzm

An article by F. Brenden Coller posted on the e-Discovery Law Review website of the law firm Cozen O'Connor.

The article discusses a recent case in which U.S. Magistrate Judge Andrew J. Peck issued an order seeking a protocol from the parties for the use of "Predictive Coding".  The article states, "...Magistrate Judge Peck issued an opinion detailing his reasons for authorizing the use of predictive coding in Da Silva Moore v. Publicis Group, No. 11-CV-1279 (S.D.N.Y. Feb. 25, 2012). Judge Peck’s position on predictive coding can be summarized by a single statement in his Opinion: “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.”

As Judge Peck noted, this Opinion appears to be the first wherein the Court approved predictive coding. He emphasized that while manual document reviews are still considered the “gold standard,” studies have shown that “computerized searches are at least as accurate, if not more so, than manual review.”"

The article goes on to further provide 5 factors that Judge Peck referenced regarding the possible use of predictive coding (a/k/a Technology Assisted Review). The factors mentioned are as follows:

"Judge Peck listed five considerations in his approving the use of predictive coding:

(1) the parties’ agreement; (2) the vast amount of ESI to be reviewed (over three million documents); (3) the superiority of computer-assisted review to the available alternatives (i.e., linear manual review or keyword searches); (4) the need for cost effectiveness and proportionality under Rule 26(b)(2)(C); and (5) the transparent process proposed by [the defendant]."

P.S.  This will continue to be an important topic for the legal profession, as advances in technology continue to impact the method of attorney review during the discovery phase of litigation.