In the recent Southern District of New York case Moore v. Publicis Groupe, 11 Civ. 1279 (U.S. Dist. Ct., SDNY) (Decision April 25, 2012) the court was called upon to decide whether the use of computer-assisted coding in the discovery process was proper. The court held that it was indeed perfectly appropriate.
The plaintiff and the defendant MSL Group entered into a stipulation regarding MSL’s production of electronically stored information (“ESI Protocol”). The magistrate judge had so-ordered the ESI Protocol. Plaintiff raised several objections. First, it objected to the magistrate’s ESI protocol. It also raised objections to the magistrate’s discovery rulings, arguing that the predictive coding method in the ESI Protocol lacks generally accepted reliability standards. Plaintiff argued that the method violates Fed. R. Civ. P. 26 and Federal Rules of Evidence 702. Also, it claims that the magistrate improperly relied on outside documentary evidence in his opinion and order; that MSLGroup’s expert is biased because the use of the predictive coding method will inure to the financial benefit of the company; that the magistrate failed to hold an evidentiary hearing; and that the magistrate adopted MSLGroup’s version of the ESI Protocol on an insufficient record.
Plaintiff asked the court to overturn the magistrate’s rulings and further requested that the magistrate recuse himself from the action.
The district court started out by noting that under prevailing law, a court must afford a lot of deference to the magistrate’s rulings. Rule 72(a) of the Federal Rules of Civil Procedure provides that for non-dispositive orders issued by a magistrate, “the district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); see also 28 U.S.C. §636(b)(1)(A). “Under this highly deferential standard of review, magistrates are afforded broad discretion in resolving [non-dispositive] disputes and reversal is appropriate only if their discretion is abused.” AMBAC Fin. Servs., LLC v. Bay Area Toll Auth., No. 09 Civ. 7062, 2010 WL 4892678, at *2 (S.D.N.Y. Nov. 30, 2010). A magistrate judge’s ruling is considered “contrary to law” when it “fails to apply or misapplies relevant statutes, case law, or rules of procedure.” In re Comverse Tech., Inc. Sec. Litig., No. 06 Civ. 1825, 2007 WL 680779, at *2 (E.D.N.Y. Mar. 2, 2007). “The reviewing court must be left with the definite and firm conviction that a mistake has been committed to overturn the magistrate judge’s resolution of a non-dispositive matter.” AMBAC Fin. Servs., 2010 WL 4892678, at *2. “Matters concerning discovery generally are considered ‘nondispositive’ of the litigation.” Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990).
The court adopted the magistrate’s rulings, finding them “well-reasoned”. Further, the court pointed out that the rulings took into account the pluses and minuses of the predictive coding software. The Protocol in question contains built-in safeguards guaranteeing the reliability of the process, and it allows for plaintiff’s participation in the process. The Protocol makes sure that the search methods are well-prepared and tested for quality assurance and that plaintiff gets to participate in their implementation. For example, plaintiff can provide keywords and review the documents and the issue coding before the production. If plaintiff questions the relevance of the documents that are chosen by the search terms, the parties can raise their concerns to the magistrate before the final production. Even after plaintiff receives production, it has the right to revisit the issue if it feels that relevant documents are missing.
The court also refused to countenance plaintiff’s argument that the predictive software was unreliable, finding that argument “premature”. The magistrate heard expert testimony during a court conference and the lack of a formal evidentiary hearing was only a minor issue. If it turns out that the method used is unreliable then the parties can question its effectiveness and at that point, the magistrate can conduct an evidentiary hearing. The court showed great deference to the magistrate, noting that he was in the best position to determine if and when an evidentiary hearing is required. The magistrate already ruled that if the software was defective, or if plaintiff does not get the type of documents that should be produced, the parties can bring up their concerns to the magistrate. The court never indicated that it would preclude plaintiff from receiving relevant information.
While manual review of documents with keyword searches is expensive and appropriate in certain situations, it is also susceptible to human error and can result in discrepancies since it is dependent on the various attorneys’ own determination about whether a document is responsive to a specific discovery request. The court did not find the magistrate’s conclusion that the predictive coding software was more appropriate than keyword searching clearly erroneous or contrary to law. The court adopted the magistrate’s rulings and rejected plaintiff’s objections.