There’s been a lot of fuss and bother about the Da Silva Moore decision by Judge Andrew Peck, much of it fomenting the notion that a federal magistrate judge (approved) (required)(made mad passionate love to) predictive coding in a case. I kept my own counsel until now because a judge going along with something the parties had already agreed to do struck me as something less than a jurisprudential watershed. The question presented to the court was not whether an e-culling tool would be employed but how. That is, the kids weren’t fighting about whether to play the radio but only about how to set the volume and station. They took their quarrel to Dad, and now the kid who didn’t get his way is saying Dad played favorites.
The plaintiffs, whose QA and sampling values were rejected, have every right to complain about the metrics. Where predictive coding is concerned, the devil is very much in the details. But their pairing of valid concerns with a sleazy personal attack on the judge has to be one of the dumbest moves to come down the e-discovery pike since Creative Pipe named its line of stolen garbage can designs FUVISTA (for F*** yoU VIctor STAnley). It puts the duh in Da Silva Moore.
Is Judge Peck predisposed to look favorably on the use of any technology that will demonstrably lower the cost and increase the efficiency of e-discovery? Yes, he is. He has that predisposition, not because he speaks on panels with Ralph Losey or because he’s paid to attend educational events, but because he’s paid attention at the many e-discovery conferences he’s attended. Oh, and he’s smart, too. Judge Peck understands that the princely sums spent on keyword search and linear review poorly correlate to the production of relevant documents. He sees what isn’t working and is open to the possibility that new ways are also better ways. He didn’t inject the notion of using predictive coding into the case, and it’s simply wrong of the plaintiffs to contend that Judge Peck would have approved predictive coding under any circumstances because he sought to be the first to issue an opinion about the emerging technology. If that were His Honor’s goal, he could have achieved it just as well by accepting the plaintiff’s proposed regime.
Ralph (Waldo Emerson, not Losey) said, “If you shoot at a king, you must kill him.” The shoddy accusations of bias and ex parte contact leveled against Judge Peck aren’t even a flesh wound. They’re an embarrassment, a disservice to a jurist who has given a lot of himself to helping lawyers better meet the challenge of e-discovery. Worst of all, they’re bad strategy, likely to evoke in Judge Carter an umbrage or outrage insuring that the meritorious concerns expressed by the plaintiffs about metrics are drowned out by the din of their character assassination.
Judge Peck’s enthusiasm for progress and the collegiality amongst lawyers and judges laboring to make e-discovery easier and cheaper were points well known to the plaintiffs (certainly to their experts) before the ruling. None of it would have bothered them a bit…if they’d won. Duh.