eDiscovery: not so fast with the Da Silva Moore Lawyer Relief Act of 2012

No sooner than publication of my last column (March 16) regarding the Da Silva Moore case, and my conclusion that U.S. Magistrate Judge Andrew Jay Peck's ruling regarding the advantages of predictive coding had established the "Lawyer Relief Act of 2012," word came that the federal district judge supervising that case, Judge Andrew L. Carter, Jr., had granted plaintiffs' request for an opportunity to object to Peck's decision by March 19. This development is interesting in several respects. Among others, federal district judges assign these cases to their magistrate judges and rely on the ensuing rulings. Carter was previously a magistrate judge himself, following service as a public defender, and prior to being appointed less than one year ago at age 43 to the federal bench by President Barack Obama; and Peck's 17-year eDiscovery reputation as a magistrate judge is well known and respected.

What do plaintiffs want? They seek an order rejecting use of predictive coding and a requirement that the parties agree on new electronically stored information, or ESI, protocol. They argued that, "Judge Peck's relatively quick process and decision ... 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." At least one eDiscovery blogger has argued that, "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." (ediscoverynewssource.blogspot.com/2012/03/you-cannot-unring-bell-judge-pecks-da.html).

Plaintiffs' criticism of Judge Peck's ruling. At the heart of plaintiffs' attempt to obtain extrication from Peck's predictive coding ruling appears to be a Federal Rule of Civil Procedure 72(a) objection. This requires a district judge to "consider timely objections and modify or set aside any part of the (magistrate judge's) order that is clearly erroneous or is contrary to law." In support of their effort to get Carter to overrule Peck's decision, plaintiffs allege a multitude of activities in which Peck has participated that they claim clearly indicate his involvement with and support of predictive coding. They allege that some of these demonstrate his close involvement with "multi-billion dollar law-technology-e-discovery complex" providers and counsel (including legal representatives of defendants in this case). Peck is accused of relying on outside sources not in evidence, without providing plaintiffs the opportunity to subject the authors to cross-examination, and using an article authored by him "as a sign of judicial approval ... until there is a judicial opinion approving (or even critiquing) the use of predictive coding."

In defense of Judge Peck's ruling. eDiscovery blogger Barry Murphy has come to the defense of Peck. Murphy notes that, based on his observations, Judge Peck "is always careful to not tout any particular technology" while pointing out "how the use of various technologies, when married with the right process and backed up by the right statistics, can be more effective than traditional approaches to eDiscovery search." Murphy pulls no punches when he points out that, in his opinion, to accuse Peck of touting predictive coding technology "is really mincing words." He is clear that the magistrate judge "makes the point that collaboration is the key" when using this technology, and the "two sides must get together early in the case and agree on how it will be used." Murphy says that he heard Peck speak at a legal technology conference earlier this year and make "it a point to say that he did not see it as the Court's responsibility to dig into algorithms or technology and approve specific ones as viable." Instead, Peck indicated that cooperation by the two parties concerning the use of technology assisted review, or TAR, would be expected. Murphy ruefully commented that, "memorably, much of the room chuckled at the word cooperate," and he says that, "this case illustrates why."

No matter what the outcome, cooperation will be the loser. Murphy believes that "litigation is inherently adversarial," so there is no percentage in believing that there will be extensive cooperation, "at least not in a straightforward, clear-cut manner." In this case, he believes that the question is "not whether they can or should use the advanced technology. Rather, the disputes relate to how to use the technology." Murphy wonders, "if this case is going to need a court to actually rule on the specific technology, algorithms, and processes involved in predictive coding in order to get some resolution." Even if that occurs, he is curious as to "how many challenges will there be to such a ruling," and whether Da Silva Moore will become "a blueprint about how to challenge the use of TAR in ways that can hold up a case indefinitely" through "lawyers jockeying for position ... about what methods a party can use to limit the universe of ESI produced," rather than dealing with the underlying issues in the litigation.

Why intervention by Judge Carter? Reviewing Carter's purported responses as a nominee to the federal district court, to the vetting written questions of U.S. Senator Chuck Grassley, and given his very short time in his new position, I do not find it surprising that Carter would step in and personally take over this eDiscovery dispute for resolution. Among his other vetting answers, this is what was provided concerning his case management approach: "As a Magistrate Judge, I have faced the pressures of managing a heavy caseload. When cases languish, attorney fees accumulate and make settlement more difficult. If confirmed, I would, in concert with the magistrate judges in the Southern District of New York, continue to encourage early settlement of cases by streamlining the discovery process when possible. In addition, I would continue to rule on matters carefully and with a sense of urgency to ensure that cases are moved through the system expeditiously." Notwithstanding the provisions of Rule 72(a), the current eDiscovery controversy surrounding Da Silva Moore would seem to be a perfect candidate for intervention by Judge Carter.

Murphy feels that, "this case is exciting because it will help answer the question about how to best use TAR and may provide the impetus needed to inject some real cooperation between otherwise adversarial parties." I agree with Murphy, and also feel that Da Silva Moore will become a landmark eDiscovery case. The "$64,000 Question" is, in what direction?