Case Law

District Court Upholds Judge Peck’s Order Endorsing Computer Assisted Review

New York

Da Silva Moore v. Publicis Groupe, No. 11 Civ.1279 (ALC) (AJP) (S.D.N.Y. April 26, 2012). Following U.S. Magistrate Judge Andrew Peck’s February 24 opinion and order finding predictive coding appropriate for this ongoing employment discrimination litigation, the plaintiffs objected, arguing the order was contrary to law and asked the District Court to overturn it. Specifically, the plaintiffs argued that Peck adopted the defendants’ version of the ESI protocol based on an insufficient record, improperly relied on outside documentary evidence, and failed to hold an evidentiary hearing to obtain expert testimony regarding the reliability and accuracy of predictive coding. Ruling on these objections, U.S. District Court Judge Andrew L. Carter, Jr. fully upheld Peck’s order and opinion, finding Peck’s ruling was “well reasoned” in consideration of the potential advantages and weaknesses of predictive coding. The court found the lack of an evidentiary hearing was insignificant, reasoning that Peck was in the best position to determine if a later hearing was necessary should the parties continue to dispute the effectiveness of the technology. Finally, the court found the plaintiffs’ arguments regarding the efficacy of the predictive coding “too speculative” and echoed Judge Peck’s earlier sentiments, noting that “there simply is no review tool that guarantees perfection.”

Keywords: technology assisted review, smart review, intelligent review, predictive coding, Peck, Da Silva, Da Silva Moore, ESI, ESI protocol, evidentiary hearing, expert testimony, reliability, accuracy