A version of the law of diminishing returns is relevant to one function of predictive coding – its use for prioritisation makes it possible to calculate how much value you are finding relative to the number of documents you are reviewing. The same applies, perhaps, to articles about Judge Peck’s decision in Da Silva Moore v Publicis Groupe, as each one finds it harder to bring something new to what has already been covered. There is still room to add value to the subject, however, and this is not the last of my articles on the subject.
David Kessler, co-head of the eDiscovery and Information Governance Practice Group at Fulbright and Jaworski LLP, and a good chap (a high form of approbation to the understated British), is the author, with others from the firm, of an article called Judge Peck Approves a Discovery Process That Includes the Application of Predictive Coding to Identify Responsive Documents. The heading puts the word “process” in italics to make it clear, as Judge Peck did, that the manner of conducting the discovery exercise is what matters here.
The article emphasises transparency, meaning, in this context, the extent to which the parties cooperate with each other, with the corresponding risk, as some may see it, of disclosing non-responsive or non-relevant materials. The article talks of the need “to ensure the protection of data such as proprietary, trade secret, confidential, and personally identifiable information”. The parties’ existing agreement in Da Silva Moore covered this, and the Fulbright team are keen to emphasise that “Judge Peck did not rule that such disclosure was necessary, and was not asked to rule, since defendants had already agreed to this approach”.
The point is made again at the end of the article: “the level of transparency that the parties agreed to in this case may not be in the best interest of every data producer or user of predictive coding, and given the posture of the opinion is certainly not required by this decision”.
It is not surprising that this point should bulk large in an article co-written by David Kessler. I was present at a panel discussion in New York a couple of years ago when he and Judge Peck found themselves on opposite sides of a debate about the risks, and indeed the propriety, of showing more of one’s hand than the rules required (a debate which was, incidentally, initiated by the UK’s Senior Master Whitaker, who argued strongly in favour of the cooperative approach required by the UK rules).
I thought at the time, and still think, that the viewpoints are not irreconcilable. David would, I think, subscribe to the way Judge Peck put it in his speech at the Carmel eDiscovery Retreat last summer which I reported thus:
Judge Peck said that he wants to see that the parties have cooperated. If there is argument about the manner of search, he needs to see what process was used as well as the result; the court may, for example, need to know something about the initial training sets used to train the computer. If push comes to shove, he said, a party may have to show the other side more than merely the outcome, weighing the benefits which can follow from such cooperation against the argument that the process is work product. If you are intending to use predictive coding (and this applies to any such technology), it is best to be up-front about it and to get opponents’ agreement and buy-in, at least by telling them what you are proposing to do – “to a certain extent inviting them to a seat at the table”. If agreement is not forthcoming then you need to get the court to rule quickly.
Judge Peck chose his words carefully in saying “to a certain extent inviting them to a seat at the table”. There is a big difference between cooperating to a certain extent to produce a search strategy on which all agree, and selling your client down the river by showing more of your hand than is right. Walking that line is one of those new skills which gives the lie to the idea that skilled lawyers are made redundant by technology.