Federal Court Decision Endorses Computer-Assisted Document Review

What you need to know:

The increasing use of computerized search and coding tools is transforming the electronic or “e-discovery” process in major litigation.  Magistrate Judge Andrew Peck of the Southern District of New York now has issued a decision specifically approving the use of computer-assisted search and coding technologies to identify relevant documents from a collection of over 3 million emails. 

What you need to do:

Judge Peck’s decision is expected to help pave the way for a broader application and acceptance of computer-assisted search and coding technologies in the context of e-discovery.  Companies should familiarize themselves with these technologies and seek guidance from their legal counsel regarding when the use of such technologies is appropriate, and how they can best be used to reduce litigation costs in a way that is reasonable and legally defensible. 

The Decision

On February 24, Magistrate Judge Peck issued a 26 page decision approving the use of computer-assisted search and coding technologies in Da Silva Moore, et al. v. Publicis Groupe & MSL Group, a class action alleging gender discrimination against the advertising company Publicis Groupe. 

Computer-assisted search and coding, also sometimes referred to as “predictive coding,” refers to a growing collection of sophisticated tools that use complex algorithms to allow a computer to determine the relevance of a large collection of documents based on a reviewer’s coding of a small sample of such documents.  In other words, the technologies are designed to allow an attorney with knowledge of the facts of a case to examine a relatively small sample of documents for relevance.  From that small sample, the computer program can predict the relevance of individual documents in the larger collection.  Non-relevant documents can then be quickly segregated, potentially saving hundreds or thousands of hours of human review time that otherwise would be wasted on insignificant materials.

The issue of computer-assisted coding came before Judge Peck in Da Silva Moore because, while both parties agreed to use such technology, they disagreed about the precise methodology and terms of use.  Judge Peck ultimately ordered the use of computer-assisted search and coding to identify relevant documents from a collection of over 3 million emails gathered by the defendants from a defined group of custodians.  Judge Peck also emphasized the importance of cooperation and transparency among the parties in developing and implementing a protocol for computer-assisted document review.

Impact of the Decision

Despite the recent trends towards the adoption of computer-assisted search and review, and ample commentary and studies demonstrating its effectiveness and efficiency in the legal context, Judge Peck’s decision is important as the first reported judicial opinion that specifically endorses computer-assisted search and review for litigation purposes.

To be clear, Judge Peck’s decision does not require that computer-assisted search and coding be used in all cases, or even suggest that it will be approved in all cases.  The appropriateness of using computer-based tools still must be determined on a case-by-case basis.  Judge Peck approved the use of computer-assisted search and coding in the Da Silva Moore case, however, based on a variety of factors, including:

• the parties’ express agreement to use such technology;
• the large quantity of electronic documents to be reviewed;
• the “superiority” of computer-assisted review compared to available alternatives;
• the cost effectiveness and proportionality of the methodology; and
• the transparency of the review process.

Judge Peck’s decision also expressly holds that computer-assisted search and review is not, and need not be, perfect in order to be an acceptable tool for use in litigation.  In reaching his decision, Judge Peck cites to research suggesting that computer-assisted search and review actually has been shown to be more effective and more economical than employing linear manual review or keyword searches to cull large volumes of electronic documents.  In short, Judge Peck’s decision emphasizes 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.”

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