Judge Carter Upholds Judge Peck in Da Silva Moore Case

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This is a copy of the court order entered by Judge Andrew L. Carter, Jr. upholding the order of Magistrate Judge Andrew J. Peck, which compelled the parties to use predictive coding technology for the attorney review phase of the litigation, and sought a protocol from the parties to outline the use of such technology. The plaintiff's in the case had objected to Judge Peck's order, and sought further expert testimony regarding the protocol for the use of predictive coding, as well as seeking to remove Judge Peck from the case.

The Order states, "Plaintiffs object to the February 8 discovery rulings, the ESI protocol, and the February 24 opinion and order, arguing, inter alia, that the predictive coding method contemplated in the ESI protocol lacks generally accepted reliability standards, that the use of such method violates Fed. R. Civ. P. 26 and Federal Rules of Evidence 702, that Judge Peck improperly relied on outside documentary evidence in his February 24 opinion and order, that MSLGroup’s expert is biased because the use of the predictive coding method will reap financial benefits for the company, that Judge Peck failed to hold an evidentiary hearing, and that he adopted MSLGroup’s version of the ESI protocol on an insufficient record. Plaintiffs request that the Court overturn the Magistrate Judge’s rulings because they are erroneous and contrary to law....Plaintiffs also submitted a letter requesting that Judge Peck recuse himself from the action, which Judge Peck denied on April 2, 2012, but allowed them to file a formal motion."

The Order fully upholds Judge Peck's earlier ruling, and further states, "The lack of a formal evidentiary hearing at the conference is a minor issue because if the method appears unreliable as the litigation continues and the parties continue to dispute its effectiveness, the Magistrate Judge may then conduct an evidentiary hearing. Judge Peck is in the best position to determine when and if an evidentiary hearing is required and the exercise of his discretion is not contrary to law. Judge Peck has ruled that if the predictive coding software is flawed or if Plaintiffs are not receiving the types of documents that should be produced, the parties are allowed to reconsider their methods and raise their concerns with the Magistrate Judge. The Court understands that the majority of documentary evidence has to be produced by MSLGroup and that Plaintiffs do not have many documents of their own. If the method provided in the protocol does not work or if the sample size is indeed too small to properly apply the technology, the Court will not preclude Plaintiffs from receiving relevant information, but to call the method unreliable at this stage is speculative."