Applied Discovery has a double interest in the Da Silva Moore v Publicis Groupe case which came before Judge Peck just before Valentines Day. As a software provider, it offers technology-assisted review (which it calls “predictive tagging”) powered by Equivio->Relevance as part of its Leverage Suite – the press release from last August is here. Applied Discovery is also one of the best  commentators on eDiscovery practice and the developments which matter to its clients, with weekly updates and good original content.

Both of these interests come together in an article called Did Judge Peck Send Us an Early Valentine? by Applied Discovery’s Ignatius Grande, which picks out points of interest from the published transcript of the Da Silva Moore eDiscovery hearing.  It would be fair to say that many of the essential characteristics of a Valentine’s Card are missing –  the words “Stop whining and stop the sandbagging. This goes for both sides. Get along.”,  whilst definitely about relationships, are not what you would hope to find on the doormat on 14 February.

Ignatius Grande rightly picks out the strands of wider significance: it is important to hear a judge say on the record that technology-assisted review “certainly works better than most of the alternatives, if not all of the alternatives”;  lawyers also need a reminder that the goal is not perfection but making the process “significantly better than the alternative without nearly as much cost”; the emphasis on the human input –  technology assisted review “is only as good as the training that it gets”, and on the obligation to cooperate, are also important.

As with a conventional Valentine’s card, it is absolutely crucial that we get the message right here – and by “we”, I mean all those who have an interest in reducing the cost of eDiscovery, whether as judges, clients, lawyers or those who offer solutions.  The technology in the Da Silva Moore case was Recommind’s Axcelerate eDiscovery; Applied Discovery’s own solution, as I say, is Equivio’s Relevance. It does not matter, in the wider context, whether you call the technology “Predictive Coding” or, as Applied Discovery does, “Predictive Tagging”, or any of the other labels used by the growing number of players who offer some kind of technology-assisted review (“TAR”) or computer-assisted review (“CAR”).

The important message is nothing to do with “black boxes”, with the chimaera of alleged perfection, or with gamesmanship by aggressive-for-the-sake-of-it lawyers. What best gets you to the result which lies at the junction between adequacy and cost? As Ignatius Grande says at the end of his article, what is needed is a strategy, either case-specific to address the problem in front of you, or as a firm for cases generally.

I doubt that there will be much resemblance between the written Opinion, if there is one, and a Valentine. I am looking forward to it anyway.

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