Da Silva Moore sets stage for predictive coding's advancement

Judge Peck's opinion considered first judicial endorsement of e-discovery tool

Online Exclusive: Read an update on the Da Silva Moore plaintiffs.

A relatively run-of-the-mill employment class action lawsuit recently set the legal technology world aflame. The case, Monique Da Silva Moore, et al. v. Publicis Groupe & MSL Group, centers on five women who accused advertising conglomerate Publicis Groupe of gender discrimination. But little of this is relevant to the fire. Instead, a discovery dispute between the parties ignited the blaze, providing the perfect storm for what is considered the first judicial opinion to endorse predictive coding as a defensible way to review documents.

Getting Transparency

What Judge Peck does say in his opinion is that predictive coding is an appropriate tool in certain cases, but only if it is part of a defensible process that is subjected to the same quality-control testing appropriate to any type of document review.

Predicting Use

Judge Peck’s opinion raises the question: When is the use of predictive coding appropriate? Experts agree that right now, given the high cost of the technology, it’s best used in cases with a significant amount of data to warrant that cost. Also necessary at the moment is a large enough set of responsive documents within the data collection to allow the software to be effective. Vendors, however, are working on adapting their tools to make predictive coding more appropriate for smaller cases.

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