He’s done it again. U.S. Magistrate Judge Andrew Peck is at the center of the eDiscovery universe with a new opinion touching on some questions surrounding the use of predictive coding in litigation. On March 2, 2015, Judge Peck issued Rio Tinto Plc v. Vale S.A., approving the parties’ stipulation to use predictive coding in discovery. In connection with his order, Judge Peck offers guidance on the use of predictive coding “because of the interest within the ediscovery community about TAR cases and protocols.” Transparency and Cooperation Most of Rio Tinto is dedicated to discussing the merits of transparency and cooperation in developing predictive coding seed sets. As Judge Peck observes, this issue remains open and there is no definitive answer on the extent of transparency and cooperation required in connection with seed sets:
One TAR issue that remains open is how transparent and cooperative the parties need to be with respect to the seed or training set(s). (emphasis added)
Citing to his opinion in Da Silva Moore v. Publicis Groupe and various other cases, Judge Peck makes clear that he “generally believe[s] in cooperation” in connection with seed set development. Nevertheless, Judge Peck stops short of suggesting that transparent cooperation is absolutely required. As he explains: [R]equesting parties can insure that training and review was done appropriately by other means, such as statistical estimation of recall at the conclusion of the review as well as by whether there are gaps in the production, and quality control review of samples from the documents categorized as now responsive. (emphasis added) “Black Letter Law” Beyond seed set development, Judge Peck also discussed the state of the law with respect to predictive coding. Since Da Silva Moore, Judge Peck noted that various cases had been issued approving the use of predictive coding. This includes the Dynamo Holdings Ltd. P’Ship v. Comm’r of lnternal Revenue case, which, Judge Peck observed, rejected the argument that predictive coding was an “unproven technology.” As if the issue needed any further clarification at this point, Judge Peck declared that it is “black letter law” that parties can use predictive coding:
[T]he case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.
A Higher Standard? The final key point that Judge Peck emphasized is that courts and litigants should not hold predictive coding to a so-called “higher standard” than keyword searches or linear review. Such a standard could very well dissuade counsel and clients from using predictive coding, which would be a step backward for discovery practice overall:
One point must be stressed – it is inappropriate to hold TAR to a higher standard than keywords or manual review. Doing so discourages parties from using TAR for fear of spending more in motion practice than the savings from using TAR for review.
Key Takeaways from Rio Tinto The Rio Tinto case is a refreshingly candid and straightforward opinion that provides litigants with two key takeaways regarding the use of predictive coding. The first is that while cooperation and transparency may be preferred by many courts, they are not absolutely required for a party to use predictive coding. Instead, the decision whether to cooperatively disclose and develop a predictive coding seed set remains in the hands of the responding party and its counsel. The second is that courts should be wary of litigants who argue that predictive coding should be held to a different standard than other search methodologies. Nothing in the Federal Rules of Civil Procedure suggests that predictive coding should be treated with such skepticism before it can be used. As Judge Peck makes clear, predictive coding is no longer an “unproven technology,” is “black letter law,” and should be recognized as “an acceptable way to search for relevant ESI in appropriate cases.”