Three years ago, Magistrate Judge Andrew J. Peck penned the landmark decision Da Silva Moore v. Publicis Groupe & MSL Group, 27 F.R.D. 182 (S.D.N.Y. 2012), widely recognized as the first court opinion to formally endorse predictive coding. In Rio Tinto PLC v. Vale S.A., 14 Civ. 3042 (S.D.N.Y. Mar. 2, 2015), Judge Peck revisits Da Silva Moore and discusses how the legal landscape regarding predictive coding has evolved in the last three years.
Noting that the preferred term of art is now “Technology Assisted Review” or “TAR,” Judge Peck asserts that it is now “black letter law” that courts will permit the use of TAR for document review. Citing the U.S. Tax Court opinion Dynamo Holdings Ltd. P’Ship v. Commissioner of Internal Review, 143 T.C. 9, 2014 WL 4636526 (T.C. Sept. 17, 2014), Judge Peck agreed with that decision’s observation that parties can usually conduct their own discovery processes without court involvement and that seeking court-approval to use an agreed-upon predictive coding process is typically not necessary.
Judge Peck also discussed the degree to which parties using predictive coding must cooperate with each other and conduct themselves transparently regarding the seed or training set. Courts are currently split on this issue. Judge Peck posited that when the predictive coding process employs “continuous active learning” (CAL) as opposed to simple passive learning (SPL), the contents of the seed set are less significant. He concludes that while he favors transparency, there are means other than disclosing the seed set documents, such as:
- Statistical estimation of recall at the conclusion of the review to see if there are gaps in production, and
- Quality control review of documents coded as non-responsive.
Judge Peck concluded with a final observation that TAR should not be held to a higher standard than keyword searching or manual review, and expressed concern that doing so might discourage parties from using TAR as a savings measure.
Did you know? The plaintiffs in De Silva Moore sought to recuse Judge Peck from their litigation, claiming that his previous public statements in support of predictive coding and a possible relationship with defense counsel and an eDiscovery vendor involved in the litigation made his recusal necessary. The 2nd Circuit disagreed, and the U.S. Supreme Court denied certiorari on the issue.