Contract Attorneys

Judge Peck And The Machines

Is there any hope for a poor contract attorney in the high-tech world of Judge Peck?

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Magistrate Judge Andrew Peck (S.D.N.Y.) is trying to put me out of work. I’ll grant it probably isn’t a personal thing seeing as I’ve never actually met the man, but his opinions on the legal, cutting edge of predictive coding and other forms of technology assisted review (TAR) are paving the way for the increased use of technology in discovery which mean fewer job opportunities for schlubs like me just trying to code some documents for a living. And he is at it again.

Judge Peck’s order in Rio Tinto PLC v. Vale S.A., for which he provided a helpful subtitle “Predictive Coding a.k.a. Computer Assisted Review a.k.a. Technology Assisted Review (TAR) — Da Silva Moore Revisited,” has gotten a lot of attention for the green light it’s giving to TAR. As noted above, Judge Peck has historically been a vocal supporter of using technology in discovery and his opinion in Rio Tinto only opens the floodgates further.

It is noteworthy that Judge Peck cites case law for the proposition that courts should not be in the business of dictating the review process a party “should use when responding to discovery.” And he observes, “It is inappropriate to hold TAR to a higher standard than keywords or manual review. Doing so discourages parties from using TAR for fear of spending more in motion practice than the savings from using TAR for review.”

And litigants, long a conservative bunch, have slow played their use of TAR for fear costs associated with the motion practice to defend their practices would outstrip any savings from the use of the technology. With this decision Judge Peck is giving the green light to our robot overlords.

But maybe I’m being overly fearful of unemployment. Gil Keteltas of Baker Hostetler thinks it will still take some time for litigation practices to catch up to Judge Peck’s vision.

Still, many hold (and will continue to hold) TAR to a higher standard because there is not widespread confidence that practitioners will deploy TAR correctly, or that a receiving party, unskilled in the use of machine learning tools (or even categorization and clustering tools), will be able to make or evaluate a “statistical estimation of recall at the conclusion of the review” or identify “gaps in the production.”

So law’s reputation as a bastion for luddites may stave off the bread line. Keteltas continues.

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Even given the advances in case law and practice since Da Silva Moore, a large segment of bench and bar do not understand TAR, cannot explain it, and cannot defend the workflow they deployed in using it.

Well, damn. So perhaps selling grandma’s pearls when I heard this decision was a bit of an overreaction. It seems the incompetence of my fellow bar members might actually be useful. In the meanwhile, I’ll be in the corner honing my technology skills, after all, someone’s got to run the machine.

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