Da Silva Moore

The Da Silva Moore Case Ten Years Later: eDiscovery Case Law

Technically, ten years minus one day, but I’ll get to that. It’s hard to believe that it’s been ten years since now retired New York Magistrate Judge Andrew J. Peck issued the ruling in the Da Silva Moore case that was the first court approval of predictive coding.

In Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y. Feb. 24, 2012), Judge Peck, after instructing the parties to submit proposals to adopt a protocol for eDiscovery that includes the use of predictive coding, wrote his opinion that provided a background of the Title VII gender discrimination case at the heart of the matter and then referenced his October 2011 article (Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?) to explain computer-assisted review.

Judge Peck also detailed the parties’ negotiation of an agreed protocol for the computer-assisted review for this case and accepted the defendants’ proposal, which included seven iterative “seeding” reviews (with a caveat of what to do if the parties didn’t agree that seven rounds of review were sufficient). Judge Peck also recognized that “computer-assisted review is not a magic, Staples-Easy-Button, solution appropriate for all cases” and noted that “[t]he goal is for the review method to result in higher recall and higher precision than another review method, at a cost proportionate to the ‘value’ of the case” (referenced in the seminal article Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, written by Maura R. Grossman & Gordon V. Cormack).

Judge Peck recognized the significance of his ruling at the outset of it when he stated: “This judicial opinion now recognizes that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.”

Anyone who is interested in learning about Technology Assisted Review (TAR)/Predictive Coding for eDiscovery must read the Da Silva Moore ruling, Judge Peck’s Search Forward article and Grossman and Cormack’s Richmond Journal of Law and Technology article referenced above.

So, where do we stand with the use of TAR ten years after Da Silva Moore? Well…

The good news is that we’ve seen TAR approved in many more cases over the years (too many to count) and it’s commonly accepted today. Disputes regarding TAR are most likely to be about how it’s conducted or how transparent it needs to be, not whether it should be conducted at all. In fact, you can’t be forced to use TAR, as Judge Peck’s later ruling in Hyles v. New York City proved when he refused to order the defendant to use it, citing Sedona Principle 6 (despite his declaration that he was “a judicial advocate for the use of TAR in appropriate cases”).

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The “not so good” news is that the use of TAR is still not as widespread as many of us thought it would be by this point. In fact, use of it may be stagnating – at best. In our 2022 State of the Industry report (sponsored by EDRM), we saw that 25.9% of respondents use predictive coding technologies and approaches in all or most of their cases (a drop of 5.2% from last year’s report), and more than one third (36.3%) of respondents use it in very few or none of their cases (a rise of 3.5% from last year).  In other words, less people are using it most of the time, while more people are hardly using it, if at all.

When I asked Judge Peck (now Senior Counsel with DLA Piper) about where the landscape of predictive coding will be in five years in terms of adoption, technologies and approaches (for the report), he said:

“Of course, I was asked that 5 or more years ago and predicted a much higher use of predictive coding/TAR than exists now. All I can say is it will continue to be used more and more. But what I said 5+ years ago is I thought everyone would be using TAR in 5 years, once an even newer and better technology came on the scene, and then we’d be discussing when would more lawyers be using that new technology.”

Progress is often slower than we thought it would be (or we thought it should be), but it still moves forward when you look at a long enough stretch of time.

So, why did I publish this post today instead of tomorrow on the actual ten-year anniversary of the Da Silva Moore ruling? Because Judge Peck will be honored tonight with the (very timely) 2022 Shira Scheindlin Lifetime Achievement Award in the eDiscovery Hero Awards presented by Zapproved at 7pm ET. You can register for that online event here!

So, what do you think? Were you familiar with the Da Silva Moore case? If not, you should be! Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion links courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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