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.