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The E-Discovery Opinion We've Been Waiting for Has Arrived

March 1, 2012 - By Applied Discovery
"Counsel no longer have to worry about being the 'first' or 'guinea pig' for judicial acceptance of computer-assisted review." When penning "Search, Forward" (note: free registration may be required to access this article), U.S. Magistrate Judge Andrew J. Peck suggested it would be a "long wait" before a judicial opinion approved predictive coding. The "long wait" turned out to be just four months. Last week, Judge Peck issued the landmark opinion, ruling that "computer-assisted review is an acceptable way to search for relevant [electronically stored information (ESI)] in appropriate cases."

An E-Discovery Blueprint

In "Search, Forward," Judge Peck established a blueprint for handling a challenge to the proposed use of predictive tagging. In that circumstance, Judge Peck advised that he would inquire into the parties' process and results:
I will want to know what was done and why that produced defensible results. I may be less interested in the science behind the "black box" of the vendor's software than in whether it produced responsive documents with reasonably high recall and high precision.
That may mean allowing the requesting party to see the documents that were used to train the computer-assisted coding system. (Counsel would not be required to explain why they coded documents as responsive or non-responsive, just what the coding was.) Proof of a valid "process," including quality control testing, also will be important.
His opinion closely tracked the reasoning he set forth in this article.

Judge Peck's Opinion

Judge Peck approved defendant MSL's use of predictive tagging for five reasons: (1) the parties' agreement to use computer-assisted review, (2) the large volume of ESI, (3) the "superiority of computer-assisted review to the available alternatives," such as manual review and keyword searches, (4) the need for cost effectiveness and proportionality under the FRCP, and (5) the transparency of MSL's process.

However, he was careful to note that his opinion "does not mean computer-assisted review must be used in all cases, or that the exact ESI protocol approved here will be appropriate in all future cases that utilize computer-assisted review."

Judge Peck recognized that "computer-assisted review is not a magic, Staples-Easy-Button solution appropriate for all cases." He remarked that while it was "not perfect," it was better than the alternatives, explaining that "the Federal Rules of Civil Procedure do not require perfection." He encouraged parties to seriously consider computer-assisted review "in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review."

Other Lessons for the Future

Judge Peck's opinion offers further guidance to future litigants in his court and elsewhere.
  1. Cooperation is imperative: Citing The Sedona Conference's "Cooperation Proclamation," Judge Peck remarked, "The best solution in the entire area of electronic discovery is cooperation among counsel," and "an important aspect of cooperation is transparency in the discovery process."
  2. Results, not cost, drive proportionality: Judge Peck wrote that "while cost is a factor under Rule 26(b)(2)(C), it cannot be considered in isolation from the results of the predictive coding process and the amount at issue in the litigation."
  3. Control costs by conducting discovery in stages: To manage the expense of e-discovery, Judge Peck recommended that parties undertake discovery in stages, starting with the sources most likely to be relevant and later expanding to other sources as necessary.
  4. Exploit clients' ESI knowledge: Defining cooperation as the "strategic proactive disclosure of information," Judge Peck opined, "If you are knowledgeable about and tell the other side who your key custodians are and how you propose to search for the requested documents, opposing counsel and the Court are more apt to agree to your approach."
  5. Use ESI experts: Judge Peck "found it very helpful that the parties' e-discovery vendors were present and spoke at the court hearings where the ESI Protocol was discussed." He also recommended that vendors and counsel "be able to explain complicated e-discovery concepts in ways that make it easily understandable to judges who may not be tech-savvy."
Plaintiffs' Objections

On February 22, 2012, the plaintiffs filed their objections to the order, claiming Judge Peck's various discovery rulings were "clearly erroneous and contrary to law." Judge Peck largely preempted the plaintiffs' objections in his opinion. In response to the plaintiffs' suggestion that the ruling "provides unlawful 'cover' for MSL's counsel" under FRCP 26(g), which requires counsel to certify that a document production is "complete" and "correct" as of the time it is made, Judge Peck decided that the plaintiffs misinterpreted the rule. The rule, he said, applies to initial disclosures, not to discovery responses, noting it would be impossible to certify that production was complete in a case involving 3 million e-mails.

Judge Peck also determined that the plaintiffs' concerns about the reliability of the predictive tagging results were premature. The judge wrote that the plaintiffs could raise these concerns once results were available—either during or after the process—and that the concerns would be more appropriate in a situation where the proposal to use predictive tagging was less transparent.

The judge concluded that expert testimony was not necessary to evaluate the propriety of using predictive tagging in this case. However, the plaintiffs marshaled the heavy hitters in their support—namely, decisions from Magistrate Judge Paul W. Grimm (Victor Stanley, Inc. v. Creative Pipe) and Magistrate Judge John M. Facciola (Equity Analytics, LLC v. Lundin) as well as a declaration from their e-discovery consultant—to ­­argue that expert testimony is required to assess the search methodology.

Once the defendants respond to this motion, the district judge will determine whether to uphold Judge Peck's ruling. Until then, we expect to see more parties relying on computer-assisted review to reduce their e-discovery costs. For help in crafting an e-discovery protocol that incorporates computer-assisted review, please contact Applied Discovery.
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