Judge Peck’s Predictive Coding Game-Changer

Posted by Christine Hutcheson on Monday, February 27, 2012

On Friday, Southern District of New York Magistrate Judge Andrew Peck issued what LTN referred to as “a much-anticipated opinion” on the use of computer-assisted review (aka “Predictive Coding”) technology and workflow in civil litigation. The 49-page opinion was an instant sensation for one simple reason best described by Judge Peck himself: it was “the first in which a Court has approved of the use of computer-assisted review. ” Commentators immediately heralded the opinion as one that will guide litigants for years to come. In one fell swoop, Judge Peck likely had as big an impact as thousands before him who spent years working to lift the eDiscovery industry out of its inefficient, antiquated, overly manual and keyword-centric past.

First, a caveat. For reasons of client confidentiality which become clear in the case’s now-public ESI protocol and order, we and others similarly situated have declined to comment on the case itself, an approach from which we will not deviate. However, beginning with this post and continuing over the next days and weeks, we will provide our thoughts about what Judge Peck’s landmark opinion means for eDiscovery specifically, for the legal industry in general and as a microcosm of the larger trend toward the data-driven enterprise (aka “Big Data”).

Congratulations are in order to all those whose work provided the foundation for Judge Peck’s opinion. Many are unknown and those that are known are too numerous to list here, but the most high-profile groups include the Sedona Conference and the TREC Legal Track. Both helped push the industry – parties, litigators, judiciary and vendors alike – to use and embrace better technology and workflow to achieve the FRCP’s goal of a “just, speedy, and inexpensive determination of every action. ” Forward-looking vendors have also played a role. Fierce competition between different approaches has forced all to “up their game” to capture more business. Thanks to this large and impressive body of work, embracing Predictive Coding was not a hard choice for the court to make; as Judge Peck stated, “the decision to allow computer-assisted review in this case was relatively easy. ”

This opinion is nothing short of a game-changer for the eDiscovery industry because it signals that eDiscovery, and indeed discovery, has entered a new phase where Predictive Coding will quickly go from cutting-edge approach to mainstream technology and workflow embraced by most, and eventually all. Lest anyone miss this key takeaway, Judge Peck made the point as clearly as can be done:

“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 and produce relevant ESI while adhering to Rule 1 and Rule 26(b )(2)(C) proportionality. Computer-assisted review now can be considered judicially-approved for use in appropriate cases. ”

Predictive Coding was already emerging as the preferred approach for document analysis and review, and this opinion will undoubtedly expedite the process. Given the clarity of Judge Peck’s opinion and the momentum behind this trend, it’s not hard to imagine a time in the near future when the use of older methodologies, such as keyword-only search, keyword “clustering” and lack of integrated sampling will themselves be considered unreasonable. How’s that for rapid change?

For the sizable community of leading enterprises and AmLaw 200 firms already using Predictive Coding, this opinion will confirm their foresight in early adoption. Of greater importance to this group – especially inside counsel – is that the opinion should quickly mitigate the perceived risk of plaintiffs’ counsel claiming the use of computer-assisted methodology is unreasonable (note that this risk has already effectively disappeared with regulatory authorities, as most regulators already use Predictive Coding). Seemingly overnight, the shoe appears to have moved to the other foot…which raises the question: how long until not using Predictive Coding creates a strategic risk to a party?

Much of the rest of the industry will likely view Judge Peck’s opinion as the green light it has been watching and waiting for. Bedeviled by ever-increasing volumes and variety of corporate information, and the velocity at which employees create it, corporate counsel have been embracing new approaches for years while similarly pushing outside counsel to do the same (with mixed results in the latter effort). With this decision, outside counsel now have judicial “air cover” to use Predictive Coding to dramatically improve their ability to get to the heart of any matter quickly, thereby allowing them to provide better, more timely service to clients. We can’t speak for others, but based on our recent results this transition was well underway before Judge Peck’s opinion – and will surely accelerate significantly in the months and quarters ahead.

What happens next? The first order of business is education. Many will want to get up to speed on exactly what Predictive Coding is, how it works, how it is employed and how they can get started using it. The best place for them to go for guidance is to those practitioners who have been using Predictive Coding for years and thus have the extensive, hard-won experience with which to educate. Among others, examples of such sources can be found at www.predictivecoding.com, at end user-driven seminars and from leading firms like WilmerHale, Morgan Lewis and Fulbright & Jaworski. As the leader in Predictive Coding, Recommind will be formalizing the educational options it has offered clients for years – most of which will also now be made available to virtually anyone who wants to learn more.

Through these and other educational efforts, we are confident Predictive Coding will become the de facto method of conducting document review as part of civil litigation, regulatory investigations and internal investigations by 2013. The benefits of Predictive Coding are many, including better and quicker strategy formation, a leveling of the playing field (as defendants can avoid “eDiscovery blackmail”), and making proportionality an honest-to-goodness argument to be made in and by courts of law. Predictive Coding’s uses go well beyond document review, with inside counsel already deriving enormous benefits and cost savings using Predictive Coding as part of the preservation, collection and ECA processes. But most of all, to quote Bob Trenchard of WilmerHale, this development will let lawyers “get back to lawyering. ”

While it had been anticipated for some time, Judge Peck’s opinion approving the use of Predictive Coding in the Southern District of New York is still a momentous decision and the culmination of an enormous amount of work by many smart, driven organizations and people. The opinion, and the rapid mainstream adoption of Predictive Coding it portends, clearly point to a brighter future. The sooner we as an industry begin to reap its benefits, the better.