Judge Peck issued an order in a case I previously blogged about. Law Technology News has the story:
Peck wrote that, “the decision to allow computer-assisted review in this case was relatively easy — the parties agreed to its use (although disagreed about how best to implement such review). The Court recognizes that computer-assisted review is not a magic, Staples-Easy-Button, solution appropriate for all cases. The technology exists and should be used where appropriate, but it is not a case of machine replacing humans: it is the process used and the interaction of man and machine that the courts need to examine.”
He acknowledges that computer-assisted review need not be used in all cases, and that the protocols he approved in the case may not be appropriate in all future cases that use computer-assisted review. Peck also made a point to state that his opinion does not endorse any vendor and that no vendors were named in the body opinion. (Although the vendor in the matter is revealed in attachments.)
“What the Bar should take away from this Opinion is that computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review. Counsel no longer have to worry about being the “first” or “guinea pig” for judicial acceptance of computer-assisted review. As with keywords or any other technological solution to ediscovery, counsel must design an appropriate process, including use of available technology, with appropriate quality control testing, to review,” Peck added.
I like that. It’s not about replacing humans. It’s about improving the ability of humans to examine documents (this will, of course, reduce the need for humans). That’s why I use the term assisted decision making.
So this is funny. Judge Peck cites his own article as a precedent! This is something I would put into a draft of an opinion and take it out.
In my article Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?, I wrote:
To my knowledge, no reported case (federal or state) has ruled on the use of computer-assisted coding. While anecdotally it appears that some lawyers are using predictive coding technology, it also appears that many lawyers (and their clients) are waiting for a judicial decision approving of computer-assisted review.
Perhaps they are looking for an opinion concluding that: “It is the opinion of this court that the use of predictive coding is a proper and acceptable means of conducting searches under the Federal Rules of Civil Procedure, and furthermore that the software provided for this purpose by [insert name of your favorite vendor] is the software of choice in this court.” If so, it will be a long wait.
Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval. In my opinion, computer-assisted coding should be used in those cases where it will help “secure the just, speedy, and inexpensive” (Fed. R. Civ. P. 1) determination of cases in our e-discovery world.
Andrew Peck, Search, Forward, L. Tech. News, Oct. 2011, at 25, 29. This judicial opinion now recognizes that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.1/
To correct the many blogs about this case, initiated by a press release from plaintiffs’ vendor – the Court did not order the parties to use predictive coding. The parties had agreed to defendants’ use of it, but had disputes over the scope and implementation, which the Court ruled on, thus accepting the use of computer-assisted review in this lawsuit.