Document Review, Federal Judges, S.D.N.Y., Technology

Predictive Coding Debate Rages On: Judge Peck Stays Discovery in Groundbreaking Case

The back and forth over predictive coding continues.…

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We have been covering the ongoing saga of Da Silva Moore v. Publicis Groupe et al., the federal case at the forefront of emerging predictive coding technology, for several months now. At first we were like, “Ooooh! A federal judge likes predictive coding!” And then we said, “Uh oh, looks like trouble in paradise.” And then things seemed to get better for a while, and we thought we might get a Hollywood ending to the dispute.

But we may have to wait for a while longer for the grand musical finale. Because it looks like, as of a new ruling from Monday, it looks like the predictive coding party has been temporarily called off.

So far, Magistrate Judge Andrew Peck has been at the center of the controversy. His open enthusiasm for the technology (which we covered before Da Silva ever made headlines) has been the source of much legal wrangling. And the question now seems to be: is Judge Peck still willing to go to the mat over predictive coding?

Thomson Reuters gives us the latest update in the gender discrimination class action which is becoming more and more of a swampy boondoggle on almost a weekly basis:

For months Sanford Wittels made little headway with the magistrate or with U.S. District Judge Andrew Carter, who adopted Peck’s predictive coding order in a five-page ruling on April 26. Following Carter’s decision, as the two sides worked with Peck to develop the seed set of predictive coding search terms to implement the first iteration of document review, plaintiffs’ lawyers argued that the terms were too restrictive. They asked Peck to stay predictive coding until Carter has ruled on their motion for certification of a collective action, which will open the discovery process to MSL employees beyond the name plaintiffs. Peck refused, which prompted Sanford Wittels to file an objection to the magistrate’s ruling.

This week Peck relented. He issued an order staying MSL’s discovery of electronically stored information until there’s a ruling on whether the case can be certified as a collective action. That means the predictive coding experiment, at least for now, is halted.

NOOOOOOOO! I feel as if my hopes for a glorious technological future have been dashed to the concrete.

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But seriously, if you still aren’t familiar with the situation, the relatively brief (and not overly technical) Thomson Reuters article provides a nice procedural history of Da Silva Moore. And really, if the implications of this case are as big as those involved would have then be — it makes sense that it would take some time to work through. Nothing important ever goes fast. Especially not in law.

The piece also includes Peck’s blunt response from yesterday to the plaintiffs’ continued efforts to have him recused:

The plaintiffs hired expert witness Richard Flamm, the author of a 1996 treatise called Judicial Disqualification: Recusal and Disqualification of Judges, to opine on Peck’s conduct. But rather than submit an affidavit or expert report, Flamm filed a motion for leave to submit an amicus brief (in accordance with an instruction from U.S. District Judge Shira Scheindlin in a recusal dispute in the IPO securities litigation a decade ago). Flamm asked for permission Monday afternoon. Tuesday morning, Peck had a reply: “An alleged amicus brief that is paid for by plaintiffs is hardly necessary or appropriate,” he wrote. “The motion is DENIED.”

Although the larger implications of the case seem to have stalled for the moment, it appears that Judge Peck is doing what he can hold to his ground. As they say in Boston (at least in the movies), “He ain’t going nowhere!” Where is Judge Peck going? Nowhere!

That federal-court e-discovery breakthrough? Not so fast… [Thomson Reuters]

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