August 05, 2016
Electronic Discovery & Digital Evidence Alert
Judge Peck, the preeminent voice of support for technology-assisted review or predictive coding, recently denied a party’s request to compel the responding party to use predictive coding. This alert discusses the case and what litigants need to know about the use of predictive coding.
Since his decision in Moore v. Publicis Groupe & MSL Group, 287 FRD 182 (SDNY February 24, 2012), Magistrate Judge Andrew J. Peck has been the most prominent and vocal proponent of predictive coding or technology-assisted review (TAR). Since that seminal decision, innumerable cases over the past four years have used predictive coding to save time and expense while searching for relevant electronically stored information (ESI). Judge Peck followed with a decision in Rio Tinto PLC v. Vale S.A., 306 FRD 125 (SDNY March 2, 2015),reminding litigators of their discovery obligations when using predictive coding. It is, therefore, noteworthy that Judge Peck in his most recent decision, Hyles v. New York City, 10 Civ. 3119 (SDNY August 1, 2016), after describing himself as “a judicial advocate for the use of TAR,” denied a party’s request to compel the responding party to use predictive coding in producing ESI.
This employment discrimination matter was referred to Judge Peck to resolve a major discovery dispute over the scope of discovery requested by plaintiff Pauline Hyles, a black female employed by defendant City of New York’s Finance Department. The plaintiff alleged she had been demoted in the fall 2008 and replaced by a white male. After a motion to dismiss and a failed mediation attempt, Judge Peck held a discovery conference on July 27, 2016. Because the date range of discovery and the number of custodians would obviously affect the collection of ESI that would then be reviewed using either key word searches or predictive coding, the court resolved these discovery issues first by determining: (i) the appropriate end date as to the disputed issue of date range of discovery, setting a date between the City’s shortened and the plaintiff’s expanded dates, and (ii) the number of custodians, denying the plaintiff’s request for an additional six custodians but stating it would consider expanding the number after the production if she could demonstrate the other custodians had “relevant, unique and proportional ESI.”
Judge Peck made it no secret in his decision about how highly he valued predictive coding, which the plaintiff had requested the court compel the City use to search for relevant ESI. At the outset, citing “my seminal Da Silva Moore decision,” he agreed that plaintiff “absolutely is correct that in general, TAR is cheaper, more efficient and superior to keyword searching.” He also stated that “the Court would have liked the City to use TAR in this case.”
However, Judge Peck declined to compel the City, because it was the responding party and “cooperation principles” during discovery outlined in the Federal Rules of Civil Procedure (FRCP) and the Sedona Conference do not “give the requesting party, or the Court, the power to force cooperation or force the responding party to use TAR.” He quoted Sedona Principle 6 that:
Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.
Judge Peck commiserated with the United States Tax Court in Dynamo Holdings Limited Partnership, Petitioner v. Commissioner of Internal Revenue, 143 TC No. 9 (September 17, 2014), which stated it “is not normally in the business of dictating to parties the process that they should use when responding to discovery.” However, in that decision, the court granted the responding party’s request that it be allowed to use predictive coding, a much different situation than here, where the responding party prefers to use key word searches.
The court ruled it would not compel the responding party to use predictive coding when it did not want to, but concluded “[t]here may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR. We are not there yet.”
Simply put, in the use of predictive coding while searching for relevant ESI, it matters if you are the requesting or responding party. Furthermore, cooperation is king in discovery. As stated in the Sedona Cooperation Proclamation (2008):
Lawyers have twin duties of loyalty: While they are retained to be zealous advocates for their clients, they bear a professional obligation to conduct discovery in a diligent and candid manner . . . as officers of the court. Cooperation does not conflict with the advancement of their clients’ interests—it enhances it.
This message came through loud and clear in this decision as well as the 2015 FRCP amendments.
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