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

http://ow.ly/9QiMZ

An article by Bob Ambrogi posted on the Catalyst eDiscovery Search Blog.

This article discusses the recent case Da Silva Moore v. Publicis Groupe, in which U.S. Magistrate Judge Andrew J. Peck had issued an order seeking a protocol from the parties for the use of predictive coding technology to be used during the attorney review phase of the litigation. U.S. District Judge Andrew L. Carter Jr. will weigh in on the issue, since on March 13th he entered an order granting plaintiffs’ request to submit additional briefing on their objections to Judge Peck’s order.

The article states, "...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."

The article further states that Judge Carter will likely issue a ruling providing further clarification on this matter, "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."