Will Recent Court Approval of Computer-Assisted Document Review Spur Acceptance in Antitrust Investigations?

http://ow.ly/9GkcF

An article by Craig A. Waldman Ryan C. Thomas and Carmen G. McLean posted on the Jones Day website.

The article discusses the recent case in which U.S. Magistrate Judge Andrew J. Peck requested a protocol from the parties to use predictive coding technology for the attorney review. The article discusses the impact that this decision might have on antitrust cases.

The article states, "Despite the increasing burden of e-discovery, private litigants and parties before the U.S. antitrust agencies have been cautious about embracing new e-discovery technologies to assist in identifying what documents are responsive to discovery or government requests.The reasoning is simple: concern that the software will miss documents that are critical to the case.This skepticism now faces a growing body of evidence demonstrating that the historic approach –"linear" document-by-document review, perhaps aided by the use of keyword searches – is no better, and likely is less accurate, than computer-assisted review. A leading federal court has now endorsed this empirical evidence. Last month in Da Silva Moore v. Publicis Group, Magistrate Judge Andrew Peck of the Southern District of New York issued an important opinion involving the use of computer-assisted"predictive coding" in electronic document productions."

In addition the article further mentions, "Nevertheless, judicial acceptance of predictive coding is a first step along the path towards FTC and DOJ, not to mention courts and agencies in other contexts, accepting these and other software tools as valuable tools for e-discovery.

The FTC already has acknowledged the importance of these new technologies. In January 2012, the FTC published proposed revisions to the Commission's Rules (open for public comment until March 23). One area for revision is how to address electronic discovery. Citing the widespread use of electronic materials and the need to improve the efficiency of its investigations, the FTC stated,"Document discovery today is markedly different than it was only a decade ago . . . . Searches, identification, and collection all require special skills and, if done properly, may utilize one or more search tools such as advanced key word searches, Boolean connectors, Bayesian logic, concept searches, predictive coding, and other advanced analytics." The FTC also proposed additional"meet and confer" obligations, which could lead to transparency like that cited in Da Silva Moore. The DOJ has not ventured into this area publicly."