Before they were famous video – Maas, Whitaker, Peck and Waxse on Predictive Coding

A LegalTech panel organised by Xerox XLS gave us the opportunity to hear four well-known judges discuss the use of technology for eDiscovery. Only one of us knew that the subject would become headline news within days, as Judge Peck moved towards his important Opinion in the Da Silva Moore case.

The trouble with predictive coding, as we all know, is that no one can agree on the numbers. Were there 17 sessions at LegalTech in which technology-assisted review played a big part, as somebody said? Or was it 21, as somebody else said? It depends on some collaborative assessment as to what we are measuring.

The number of conference sessions and articles about predictive coding at and around LegalTech did not seem to me to be excessive having regard to its importance and its potential as it then appeared. I went to only one of them, organised by Xerox Litigation Services, my choice dictated partly by the composition of the panel and partly because it was an early morning breakfast session, allowing me to fit it in between an even earlier breakfast and a packed day.

Xerox Judicial Panel

The panel, from left to right in the picture above, comprised US Magistrate Judge Frank MaasSenior Master Steven Whitaker from the UK, US Magistrate Judge Andrew Peck, and US Magistrate Judge David Waxse. The moderator was Gabriela Baron of Xerox XLS.

My headline implies new-found fame: all of these judges were, of course, well-known before Da Silva Moore as tireless advocates of better discovery, of informed cooperation, and of the use of technology to reduce costs and time-scales. I choose carefully the order in which I put these – these judges are all firmly wedded to the “just, speedy and inexpensive” requirement of Federal Rules of Civil Procedure Rule 1 or to the equivalent “overriding objective” of achieving justice demanded by the UK’s Civil Procedure Rules. Co-operation is a requirement in both jurisdictions, and all of the judges on this panel have long been advocates of it. The technology is servant to the rules and the processes which are recited in, or have evolved under, the rules. None of these judges are technophiles for the sake of it; technology is, however, the motor which enables informed cooperation to drive cheaper eDiscovery.

It is relatively easy to note up a set-piece speech – I did it, for example, with the speech which Judge Peck gave at the Carmel Valley eDiscovery Retreat last August which, as those of us present were immediately aware, signalled a judicial initiative which has now reached its logical conclusion. (“Conclusion” is not perhaps the right word – “the next staging post” might be a better way to put it, since the Da Silva Moore Opinion can be only the start of big changes in the way judges and lawyers approach discovery disputes.) A speech has a beginning, a middle and an end and if, like Judge Peck, you have spent your life preparing arguments, an account of your speeches cannot but inherit the logic in them.

Recording what was said at a panel is a different matter entirely – the best ones get their life and impact from the interchange between panellists, and this defies any attempt to construct a coherent written narrative. It is not impossible, just difficult, which is why the yards of notes which I took at that session remain as notes whilst other and easier subjects turned into articles.

Fortunately, I am spared having to write it all up because Xerox XLS has now released a video of the session. It lasts for 55 minutes, is packed with interesting observations and a good supply of humour, and is well worth watching, whatever jurisdiction you practice in.

What none of us knew at the time, except Judge Peck himself, was that the back story for that long-awaited first Opinion on predictive coding was bubbling away in his own court, with the eDiscovery hearing due to take place a few days later.


About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Discovery, eDisclosure, eDiscovery, Electronic disclosure, Predictive Coding. Bookmark the permalink.

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