Da Silva Moore, Global Aerospace, and Kleen Products – Hyped Triumvirate, But Dispositive Opinion Is Yet To Come

Three recent cases have taken the spotlight in the eDiscovery world, lauded as groundbreaking for their approval of predictive coding. This blog is no exception, having contributed to the commotion, particularly that surrounding Monique da Silva Moore, et. al. v. Publicis Group SA, et al.

In Da Silva Moore, the parties initially agreed to use predictive coding (although they never agreed to all of the details) and Magistrate Judge Peck allowed its use.  Plaintiffs have since attacked Judge Peck and most recently formally sought his recusal from the matter.  That request is currently pending.

Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles, is the most recent case to address predictive coding, and it goes a step further than Da Silva Moore.  In Global Aerospace, the defendants wanted to use predictive coding themselves, but plaintiffs objected.  Virginia County Circuit Judge James H. Chamblin, ordered that Defendants could use predictive coding to review documents.  Like Da Silva Moore, the court did not impose the use of predictive coding, rather, the court allowed a party to use it upon request.

Kleen Prods., LLC v. Packaging Corp. of Am. goes the furthest, and is perhaps the most interesting of the three predictive coding cases because it is different than Da Silva Moore and Global Aerospace in one very important way: the plaintiffs in Kleen are asking the court to force the defendants to use predictive coding when defendants review their own material.  The court has yet to rule on the issue.

These three cases are in the spotlight because the use of predictive coding is seemingly at issue, and yet, in some ways, predictive coding is only marginally at issue.  Yes, in one sense the courts are ruling upon the technology itself and whether it is viable; if a court allows it to be used, it is implicit recognition that the technology works, at least enough to try it out and see how it goes.  However, these cases are really about who gets to choose the technology and method utilized.  These cases and disputes could exist with fact patterns where the parties are arguing over key word searches or linear review and the analysis would be much the same as they are now with predictive coding.  Can the parties pick and agree to a review method and technology?  In Da Silva Moore, Judge Peck said yes.   Can one party pick how they perform their review?  The Virginia court in Global Aerospace said yes.   Can one party force another party to use certain technologies and methods to perform their review?  The Kleen court has yet to rule on the issue. 

These questions are not new and novel and so far, the answers have not been so either.  Yes, they have allowed the parties to use predictive coding, but like with other technologies, the courts have taken a wait and see approach.  If the predictive coding technologies and/or processes used are unsuccessful in meeting obligations and needs, the courts appear more than willing to make adjustments, and perhaps embrace different technologies at that time; they are willing to give predictive coding a shot, but they are not betting the house on it either.

It is understandable why proponents of predictive coding are happy and view these cases as victories.  After all, these are the first opinions approving the technologies use, even if in a somewhat implicit manner.  However, the industry and the legal community must wait before drawing our final conclusions.  Only after a party has successfully used predictive coding in a case and survived a challenge of the results/end product (not just a challenge of its use) and it is captured in written opinion or order, will a true victory be won by predictive coding proponents.  Until then, predictive coding is still the equivalent of a highly rated draft pick; there is a lot of potential, and most people think it will succeed, including myself, but it still needs to prove itself in the trenches.  The predictive coding industry is bullish about its potential for success, and it may only be a matter of time until they are proved right, but only time will tell.

Da Silva Moore Update: Judge Peck Responds to Plaintiffs' "Scorched Earth" Campaign

In the latest twist in the Da Silva Moore predictive coding case, Magistrate Judge Andrew J. Peck has responded to Plaintiffs' personal attack on him.

In a two page Order specifically addressing Plaintiffs' March 28, 2012 letter requesting Judge Peck's recusal, Judge Peck projects an aura of control, restraint, and is matter of fact in his statements. Judge Peck states:

"The Court notes that my favorable view of computer assisted review technology in general was well known to plaintiffs before I made any ruling in this case, and I have never endorsed Recommind's methodology or technology, nor received any reimbursement from Recommind for appearing at any conference that (apparently) they and other vendors sponsored, such as Legal Tech. I have had no discussions with Mr. Losey about this case, nor was I aware that he is working on the case. It appears that after plaintiffs' counsel and vendor represented to me that they agreed to the use of predictive coding, plaintiffs now claim that my public statements approving generally of computer assisted review make me biased. If plaintiffs were to prevail, it would serve to discourage judges (and for that matter attorneys) from speaking on educational panels about ediscovery (or any other subject for that matter). The Court suspects this will fall on deaf ears, but I strongly suggest that plaintiffs rethink their 'scorched earth' approach to this litigation."

Judge Peck’s response is in sharp contrast to Plaintiffs’ emotional and personal attach levied against the Judge. I applaud Judge Peck for taking the highroad and sticking to the facts, while still making his points. I am sure there will be more to come from this case and the eDiscovery News blog will keep you posted with any updates we become aware of.

To read the eDiscovery News blog’s original post about Plaintiff’s attack on Judge Peck please use the following link: http://endangeredanimals8.blogspot.com/2012/03/update-plaintiffs-attack-judge-pecks-da.html
Monica Bay of Law Technology News wrote an interesting article summarizing some of the commentary of Plaintiffs’ attack. That article can be reached via the following link: http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202547231187&Da_Silva_Moore_Plaintiffs_Reply_Brief_Generates_Quite_a_Bit_of_Fury

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

Perhaps no discovery order has been so widely covered (including by this blog) or deeply analyzed as Judge Peck’s order endorsing predictive coding in the Da Silva Moore case. In the latest turn, plaintiffs have filed a Reply in support of the objection to Judge Peck’s predictive coding ruling.

From the outset, there was a noticeable undertone of animosity towards Judge Peck running throughout the Reply. Plaintiffs took the opportunity to play up the connection between Judge Peck and defense counsel Ralph Losey (who is also regarded as a thought leader in the eDiscovery industry and is the author of a widely disseminated blog among other things), and to a lesser extent Recommind, the software vendor whose computer assisted review platform will potentially be used in this matter. Plaintiffs dedicate the first two pages (out of 14 total, and only 11 of which address the predictive coding dispute) to the recent professional relationship between Judge Peck and Mr. Losey, which has focused on the endorsement and discussion of predictive coding at various industry events around the country.

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://endangeredanimals8.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. Arguing “in his rush to be the first in line to approve predictive coding, Judge Peck did not elicit expert testimony or give the parties an opportunity to question or cross-examine the experts.”

The outcome of the Da Silva Moore predictive coding dispute is now squarely in the hands of Judge Andrew Carter, and this blog will do its best to provide further updates as they arise.

As an aside, plaintiff also made the same argument, that this blog raised in its inaugural post: Peck and Choose (http://endangeredanimals8.blogspot.com/2012/03/peck-and-choose.html), regarding Judge Peck’s deference to French Privacy Law, stating that “Judge Peck failed to engage in the required comity analysis, under which the vast majority of U.S. precedents have found that French law does not preempt discovery.” It will be interesting to see what the outcome of this issue is as the matter proceeds.

You Cannot Unring a Bell - Judge Peck's Da Silva Moore Opinion Will Continue to Be Influential Despite Objection

News recently broke noting that Magistrate Judge Andrew Peck's recent opinion addressing predictive coding is in jeopardy of becoming obsolete less than a month after causing shockwaves within the eDiscovery community.

It seems the plaintiffs in the Da Silva Moore matter took exception to the procedural and temporal irregularities surrounding the seminal opinion; Judge Peck issued the opinion after plaintiffs filed their objections, thereby depriving them of the opportunity to object to the opinion itself. Consequently, plaintiffs objected and sought the opportunity to respond to the opinion itself to which Judge Andrew Carter obliged.

While this new twist may be significant in some respects, it does not mean Judge Peck's opinion is now meaningless, and it most certainly does not signal the end of the predictive coding movement and trend; if anything, this will only serve to draw more attention to predictive coding, the de jour subject in eDiscovery at the moment. Indeed, plaintiffs’ objections focused more on procedural and process issues, rather than the efficacy or validity of predictive coding in general or as a whole.

Judge Peck is clearly an advocate of predictive coding, and in issuing his seminal opinion endorsing, or at least agreeing to the use of, predictive coding, he was perhaps a little eager to make his point. However, that fact does not greatly diminish the power of what he said, and does not close the predictive coding door that Judge Peck opened (the opinion made a large splash for a reason). Despite this minor setback, the push for predictive coding will continue to move forward and the industry will continue to look to the Peck Da Silva Moore decision as a watershed moment regardless of the outcome of this new twist - you cannot unring the bell.

Peck and Choose

Hello Everyone and welcome to my new blog. My name is Brandon and I work for an eDiscovery service provider, i.e. a vendor. This blog is something that I will be contributing to outside of my role of employee and will reflect my personal opinions on various eDiscovery issues. So, I hope that this post and others in the future will, at a minimum, give you something to think about. Enjoy.

For my first post, I am writing about Magistrate Judge Peck's recent decision in the Moniqe Da Silva Moore v. Publicis Groupe case. This is the decision now made famous for Judge Peck's comments about predictive coding, and while those comments are important, and even groundbreaking, I am writing about the opinion for another reason or reasons: the numerous other eDiscovery issues that Judge Peck mentioned, but failed to discuss, and the potential consequences of those issues.

In the opinion, Judge Peck glosses over three other major eDiscovery issues that I feel deserve to be fleshed out, including:

1. Discovery and Data Collection in the EU is Not Guaranteed - Plaintiffs sought data that resided in France and Judge Peck, without discussion, ruled that data would not be included in the first phases of discovery because the data "likely would be covered by the French privacy blocking laws[.]" What is interesting is that the quote suggests Judge Peck may abstain from requiring this data be included in Discovery because of the French laws. Most Federal courts in most cases will "ignore" foreign privacy laws, essentially telling litigants that they are under the jurisdiction of the US Courts and US discovery rules will apply, so the litigants will have to figure out how to obtain the data or face the consequences of failing to do so. Although he did not definitively rule on the matter for future phases of discovery, this raises the question: Will this start a new trend, where Judge Peck (and potentially other Judges in the future) defer to foreign privacy laws and their impact on discoverable data?

2.FRCP Rule 26(g)(1)(A) Does Not Apply to Discovery Responses - Rule 26(g)(1)(A) of course states that a party must sign every disclosure, stating that it is "complete and correct as of the time it is made." Judge Peck states that this clause does not apply to discovery responses, but rather to initial disclosures. Judge Peck instructs that Rule 26(g)(1)(B) applies to discovery responses, and it enunciates proportionality principle rather than a completeness standard. Despite the fact that it is impossible to ensure completeness in discovery responses, litigants have traditionally asserted and required the "complete and correct as of time it is made" "guarantee" in conjunction with productions. Will Judge Peck's analysis start to erode the use and mandate of this "guarantee?"

3. The Decision to Embrace Computer-Assisted Review in This Case Was Easy - The parties in Da Silva Moore agreed to use computer-assisted review and Judge Peck simply agreed to allow them to do so. Judge Peck points out that the tougher question is that raised by Klein Prods. LLC v. Packaging Corp. of Am., where plaintiff's have asked the court to order defendant's to use computer-assisted review to respond to plaintiff's document requests. How Magistrate Judge Nan Nolan (who by the way is a Chair for the Seventh Circuit Electronic Discovery Pilot Program) rules on that issue may have far greater impact than Judge Peck's decision. Stay tuned.

While the above issues do not have the groundbreaking caché that computer-assisted review currently does, they are none-the-less relevant and important, and may likewise have a large impact on the eDiscovery landscape moving forward. I for one, hope that they get the attention they deserve in this case and others moving forward.

Below is a link to Judge Peck's decision as well as a link to the Seventh Circuit Electronic Discovery Pilot Program Home Page.

Judge Peck's Da Silva Moore Opinion: http://falcondiscovery.com/wp-content/uploads/2012/02/dasilvamoore-2-24-12-opinion.pdf

Seventh Circuit Electronic Discovery Pilot Program Home Page: http://www.discoverypilot.com/