Predictive Coding Is Here to Stay

Judges embrace technology that's no more exotic than a spam filter.

, Corporate Counsel

   | 3 Comments

Judges embrace technology that's no more exotic than a spam filter.

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What's being said

  • Bill Speros

    You write: “Judge Denise Cote noted in a recent mega-litigation, Federal Housing Finance Agency v. JP Morgan Chase & Co. Inc., that ‘predictive coding should be given careful consideration in a case like this, and I am absolutely happy to endorse the use of predictive coding and to require that it be used as part of the discovery tools available to the parties.’"

    But: This “endorsement” related to the parties meeting-and-conferring regarding how predictive coding will be employed—essentially negotiating its definition.

    Immediately after the section you quoted the judge said: "But it seems to me that the reliability and utility of predictive coding depends upon the process that takes place in the initial phases..." Then the court facilitated and encouraged the parties to develop a protocol ruling, "But I‘m going to assume that if I don‘t hear from counsel that this process is proceeding apace and that at each step of the way it looks like it‘s headed in the right direction to produce a reliable way of searching this large document pool."

  • Bill Speros

    “Since Da Silva Moore, we have seen a number of concise opinions or excerpts of state court judges accepting the concept of predictive coding as the norm. A Virginia state court endorsed the use of predictive coding, over strenuous objection, in a partially handwritten order in Global Aerospace Inc. v. Landow Aviation.”

    But: This “endorsement” and “order” did not foreclose requesting party’s objecting to the results; it simply did not foreclose producing party’s from using predictive coding.

    •Reality: Producing party asked for prior approval of PC results. Court did not grant that waiver allowing producing party to proceed.
    •Holding: “…[W]ithout prejudice to a receiving party raising with the Court an issue as to completeness or the contents of the production or the ongoing use of predictive coding."
    [60 days later “[W]e were seriously delayed in commencing predictive coding due to difficulties in processing such a large amount of data.” See http://www.jonesday.com/predictive_coding/]

  • Bill Speros

    You write: “[T]he first judicial opinion endorsing the use of predictive coding came in Da Silva Moore v. Publicis Groupe.”

    But: This “endorsement” did not foreclose requesting party’s objecting to the results; it simply did not foreclose producing party’s from using predictive coding.

    Da Silva Moore v. Publicis Groupe SA & MSL, "Peck Opinion:” No. 11 Civ. 1279 (S.D.N.Y. Feb. 24, 2012)
    Reality: Parties’ “agreed” and court allowed them to proceed
    Holding: Performance-related "types of questions are better decided ‘down the road,‘ when real information is available to the parties and the Court.“

    Da Silva Moore v. Publicis Groupe SA & MSL, “Carter Opinion:” No. 11 Civ. 1279 (S.D.N.Y. April 26, 2012)
    Reality: Requesting party may question adequacy of production and predictive coding
    Holding: “[U]pon receipt of the production, if Plaintiffs determine that they are missing relevant documents, they may revisit the issue of whether the [predictive coding] software is the best method. If the method provided in the protocol does not work…the Court will not preclude Plaintiffs from receiving relevant information, but to call the method unreliable at this stage is speculative.”

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