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By Marc Eisner, J.D., PMP

Published on Wed, April 3, 2013

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Right on the heels of Judge Peck’s widely read and seemingly watershed ruling in Da Silva Moore is news that his ruling is being appealed.  Will a successful appeal mean the end of the using machine learning tools in ediscovery? While it is too early to tell whether the appeal will be successful, one thing does seem clear: even if the appeal is successful, it will not be a harbinger of the death of technology assisted review tools.

While the wave toward use of technology assisted review in ediscovery has certainly been building, there has been an undercurrent of reluctance until there has been clear judicial acceptance.  Judge Peck seemingly addressed this fact in an October 2011 Legal Technology News article, challenging litigants to cite that article as a sign of judicial approval, and then citing himself in the opening words of the De Silva Moore ruling.  In fact, it may be this rush to self-approve that ultimately causes the ruling to be overturned. However, the concepts that Judge Peck outlines in his opinion will survive and guide utilization of technology assisted review – regardless of the outcome of this case – and will lead eventually to wide judicial approval of the technology.

Judge Peck outlines several factors which can be influential in determining if technology assisted review is appropriate.  These factors include:

•         The volume of data

•         Proportionality under FRCP 26(b)(2)(C)

•         Having a well-designed, valid process implemented.

Even if Judge Peck’s ruling is overturned, these clearly delineated factors will likely persist, helping to move the ultimate acceptance of technology assisted review forward. A successful appeal of Judge Peck in Da Silva Moore is not the death of technology assisted review; Da Silva Moore’s principles will endure, and technology assisted review’s recognition as a valid and preferred review tool will continue.

About the Author
Marc Eisner, J.D., PMP

Senior Consultant

As an eDiscovery Solutions Architect for Lighthouse, Marc is responsible for technical understanding of the various tools in use at Lighthouse and works with clients to ensure the best solutions are employed. Marc has more than 15 years of experience as a consultant and project manager in the ediscovery field. Prior to joining Lighthouse, Marc was Director of the Systems Forensics Acquisition Services Team at Epiq where he advised Fortune 100 clients on legal requirements and best practices for data preservation and collection in international jurisdictions.

Marc's prior responsibilities as a VP of Consulting Services, Director of Professional Services, Senior Project Manager, and Technical Consultant included the management of all aspects of ediscovery in large, complex litigation; consulting with and assisting clients with the strategizing and formulation of discovery related to complex technical systems; and guidance with computer forensics investigations.

Marc received a B.A. from the University of California, Los Angeles. He received his J.D. from Pepperdine University School of Law. Marc is a certified Project Management Professional (PMP) and a member of both The Sedona Conference Working Group on Electronic Document Retention and Production and the Working Group on International Electronic Information Management and Disclosure.