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The early stages of large litigations have long been consumed by
manual document review—namely—junior lawyers
who spend weeks or months culling through mountains of documents at
great expense to the client. Fortunately, such expenses could
decrease substantially under a recent decision.1 Last
week, a federal judge in the Southern District of New York approved
the use of computer-assisted review to streamline the document
review process, potentially cutting hundreds of thousands of
dollars in costs from large litigations.
The decision, Moore v. Publicis Groupe & MSL Group,
approved the use of predictive computer-assisted coding software to
review millions of electronic documents in discovery. Predictive
coding uses sophisticated algorithms to determine documents'
relevance in conjunction with human review. The process involves
reviewing and coding a "seed set" of documents by
attorneys. The software then identifies properties of those
documents to code other documents. "As the senior reviewer
continues to code more sample documents, the computer predicts the
reviewer's coding (or the computer codes some documents and
asks the senior reviewer for feedback)," Magistrate Judge Peck
wrote. "When the system's predictions and the
reviewer's coding sufficiently coincide, the system has learned
to make confident predictions for the remaining documents."
Magistrate Judge Peck estimated that attorneys would only have to
review a few thousand documents to effectively "train"
the computer.
The Moore plaintiffs objected to this approach,
claiming it failed to meet reliability standards and otherwise
violated the Federal Rules of Civil Procedure. According to
Magistrate Judge Peck, however, "computer-assisted review
'works better than most of the alternatives, if not all of the
present alternatives'" without the cost. In adopting
Magistrate Judge Peck's ruling, Judge Carter recognized that
"ESI protocol contains standards for measuring the reliability
of the process and the protocol builds in levels of participation
by plaintiffs." He explained that "search methods [in
Moore] will be carefully crafted and tested for quality
assurance," because the plaintiffs may provide keywords and
review both the documents and the "issue coding" prior to
production. Judge Carter also recognized that parties may raise
issues of relevance to the court prior to final production of
documents and may challenge, once again, whether the use of
protective coding software is the best search method available. He
concluded that plaintiffs' characterization of predictive
coding as unreliable was "speculative."
Judge Carter also recognized that traditional means of manual
review with keyword searches is often flawed. He noted that
"such review is prone to human error and marred with
inconsistencies from the various attorneys' determination of
whether a document is responsive."
This is an extremely important decision, particularly for
defendants in large litigations. In essence, the Moore decision can
be used as a road map to significantly diminish costs.
Footnotes
1. Moore v. Publicis Groupe & MSL Group, No.
11 Civ. 1279 (S.D.N.Y. Feb. 24, 2012) (Peck, Mag. J.), adopted by
Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279
(S.D.N.Y. Apr. 26, 2012) (Carter, J.).
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