It is fascinating to watch a story break on Twitter. The news that District Judge Carter had upheld US Magistrate Judge Peck’s opinion in Da Silva Moore appeared first as a rumour, probably within a few minutes of the promulgation of Judge Carter’s opinion. Within a short time, rumour was supported by links to the opinion itself, and not long after that the first commentary appeared.

Like Judge Carter, I am going to assume your “familiarity with the facts and the predictive coding method”. As in most jurisdictions, an order will only be overturned if it was “clearly erroneous or…contrary to law” and Judge Carter found no such grounds.

Key quotations will be recycled for months to come, Including these:

“The court adopts Judge Peck’s rulings because they are well reasoned and they consider the potential advantages and pitfalls of the predictive coding software”

“The ESI protocol contains standards for measuring the reliability of the process and the protocol builds in levels of participation by plaintiffs”

“If plaintiffs determine that they are missing relevant documents, they may revisit the issue of whether the software is the best method”

“There is simply no review tool that guarantees perfection….. Manual review with keyword searches is costly….[and] is prone to human error and marred with inconsistencies from the various attorneys’ determinations of whether a document is responsive”.

“Judge Peck concluded that under the circumstances of this particular case, the use of the predictive coding software as specified in the ESI protocol is more appropriate than keyword searching. The court does not find a basis to hold that his conclusion is clearly erroneous or contrary to law”.

The opinion ends with this:

“The court reminds the parties that it affords Judge Peck’s non-dispositive rulings great deference and Magistrate Judges generally have broad latitude with respect to discovery issues”

It is worth emphasising this latter point (that is, the fact that Judge Carter added this “reminder” on to his Opinion) because the plaintiffs motion for recusal (that is, the removal of Judge Peck from hearing these issues) is still extant.  I am spared having to say too much about the plaintiffs’ lawyers by my self-imposed rule which bars overt criticism of identifiable individuals in eDiscovery – I am happy to damn with faint praise (if you are unfamiliar with that expression see the penultimate sentence of this article), to attack whole classes, or to balance negative comments with something more positive, but there are no half-measures or mitigating factors here, so it is best to keep my mouth shut – well, not my mouth, perhaps, but at least to be restrained in what I write.

I will make an exception in respect of the “Memorandum of Law in Support of Plaintiffs Motion for Recusal or Disqualification”. It is, no doubt, a model of its kind, but it reads to English eyes as though a Daily Mail features writer has tried to parody the thesis of an aspirant lecturer at a New University. I must have nodded off when reading it, because I entirely missed the footnote which cites an article by me as evidence of the assertion that the defendants’ lawyer was pleased with the outcome of the last hearing.  (Let’s just go back over that: a party to US proceedings, seeking to overturn an order, feels the need to show that the other side were pleased with the order, and relies on an article by an English commentator to “prove” that unsurprising assertion. WTF, as we say in our understated English way)

When the plaintiffs’ original Objection and supporting Declaration were published, most US commentators focused, rightly perhaps, on issues of defensibility, on sample sizes and other details in the Protocol. I stand by my original observation:

How have we come to this?  I give no view on the propriety of the Objection or on the content of the Declaration. I am just wondering what it has all got to do with the “just, speedy and inexpensive” requirement of Rule 1 of the Federal Rules of Civil Procedure, with proportionality, with the obligation of cooperation imposed by the rules and expressly required by the judge, and with the evidence on which this case will turn.

Sod all, I’d say.

This would be a good time to read the paper Cooperation – What Is It and Why Do It by US Magistrate Judge David Waxse, and in particular his observations on the conflict (which is no conflict at all, he rightly says) between the duty of cooperation and other obligations derived from Rule 1 and the “zealous advocacy” which many lawyers see as their prime role. No one can doubt the zeal of the plaintiffs’ lawyers in Da Silva Moore.

Now, can anybody remember what this case is actually about?

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