Technology-assisted document review: Better than the alternatives

Landmark ruling lauds the benefits of technology, but counsel must still adhere to best practices

On Feb. 8, Magistrate Judge Andrew Peck conducted a status conference regarding the discovery protocol in Da Silva Moore v. Publicis Groupe, including a detailed discussion on the appropriate use of technology-assisted review. During the conference, Peck opined, “It certainly works better than most of the alternatives, if not all of the alternatives. So the idea is not to make it perfect … [t]he idea is to make it significantly better than the alternatives without nearly as much cost.”

Shortly thereafter on Feb. 24, Peck issued a formal opinion addressing the efficacy and appropriate use of technology-assisted review. In this landmark opinion, Peck concludes: “What the Bar should take away from this Opinion is that computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review. Counsel no longer have to worry about being the ‘first’ or ‘guinea pig’ for judicial acceptance of computer-assisted review.”

Further, there is an abundance of reputable commentary outside of court opinions from e-discovery authorities condoning the use of technology-assisted review. For example, Da Silva Moore strongly endorsed the Sedona Conference, which issued an open endorsement, noting that automated search methods may be “reasonable, valuable, and even necessary” to reduce costs and safely cull the amount of ESI for human review. Furthermore, Judge Peck has offered commentary outside the courtroom, echoing sentiments from case law by identifying the inefficiencies of keyword searching, the lack of any judicial opinion endorsing it, and asserting that analysis of any search technology would require evidence of adequate quality control, sampling, and validation of recall and precision.

This commentary culminates with the De Silva Moore opinion, in which Peck contextualizes these best practices and identifies specific lessons learned by resolving the parties’ e-discovery dispute. First, Peck identifies the importance of presenting proof of extensive quality control testing and verification. Second, he notes the benefits of strategically staging discovery—starting with the documents most likely to be relevant—to better control costs. Third, Peck emphasizes that counsel openly talk with their clients to identify relevant custodians and document sources and accordingly share that information with the opposition to evince thorough cooperation when scrutinized by a judge.

Managing Consultant

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David Canfield

David E. Canfield is a managing consultant in Kroll Ontrack’s electronically stored information consulting group.

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