Update – Plaintiffs Attack Judge Peck’s Da Silva Moore Predictive Coding Order Again

http://ow.ly/9OmOL

An article by Brandon D. Hollinder on the ediscoverynewsource.blogspot.com blog,

This article discusses the ruling by U.S. Magistrate Judge Andrew J. Peck seeking a protocol for the use of predictive coding.

The article states that the plaintiff's are objecting to Judge Peck's order.  The article states, "Asking “that the court reject MSL’s use of predictive coding and require the parties come up with a new ESI Protocol,” plaintiffs warn that “Judge Peck sets a dangerous precedent that is likely to deter future litigants from even considering predictive coding, lest they be bound by a protocol that contains no measure of reliability.” Obviously, counsel is trying to persuade the court here (which I can certainly appreciate), but I strongly disagree with this point. As I recently discussed in a blog titled: You Cannot Unring a Bell – Judge Peck’s Da Silva Moore Opinion Will Continue to Be Influential Despite Objection (http://ediscoverynewssource.blogspot.com/2012/03/you-cannot-unring-bell-judge-pecks-da.html), regardless of the outcome of this particular objection, predictive coding will continue to be a hot topic, and litigants will use it to the extent it makes fiscal sense and produces reasonable results.
Interestingly, plaintiffs cite Kleen Prods., LLC v. Packaging Corp. of Am., No. 10 C 5711 (N.D. Ill) in support of their arguments. Kleen is the case where plaintiffs have asked Magistrate Judge Nan R. Nolan to order defendants to use predictive coding. Plaintiffs in the Da Silva Moore matter hold Judge Nolan’s decision to require full briefing, expert reports, and evidentiary hearing on the use of predictive coding in high regard when contrasted with Judge Peck’s relatively quick process and decision."

The article further states, "The outcome of the Da Silva Moore predictive coding dispute is now squarely in the hands of Judge Andrew Carter..."  Stay tuned everyone.