Considered, deferred, denied

By | 1st May 2012

I remember what happened to each of the six wives of King Henry V111 by way of the doggerel:

“Divorced, beheaded, died,

Divorced, beheaded, survived.”

This is not the time or the place to go into details! It is sufficient to say that after many years on the throne, married to Catherine of Aragon, the King gradually became obsessed with the need to father a male heir, which, together with the connivance of Thomas Cromwell, set in train the momentous events involving the break with Rome and a new State religion, the effects of which we are still living with today.

Can we say the same about predictive coding?

After some considerable time during which disclosure was mainly handled by teams of lawyers handling ever increasing volumes of paper, we moved on to a general acceptance that some form of technology would have to be used if the exercise was not to take far too long and become ruinously expensive. The debate now ranges over the various techniques which can be employed and one of those, as readers of this blog will know all too well, is computer assisted review or predictive coding.

“Considered, deferred, denied”?

In recent months, the debate in the US has revolved around a number of cases where the courts either have or have been asked to endorse predictive coding as a method of identifying likely relevant documents from among a much greater number.

The case which is currently the most in the news is Da Silva Moore etc. In February of this year Judge Peck endorsed the use of predictive coding as a tool to review electronic discovery. The Plaintiffs appealed and also asked that Judge Peck recuse himself for a range of reasons, prominent amongst which was that he had appeared at a number of conferences sponsored by the defendants’ electronic discovery vendors, Recommind, talking about the merits of predictive coding.

On April 26th, having “considered” the appeal, Judge Andrew L Carter “deferred” the issue of recusal and “denied” the order sought by the defendants.

A neat article on the decision appears on the website of the Association of Certified E-Discovery Specialists [District judge upholds Peck on predictive coding, but says recusal of magistrate judge may endanger ruling, 27th April, 2012]

It is a good summary of the position and at the end of the article there is a link to the actual judgment delivered by Judge Carter.

“Considered, deferred, denied.” Whatever next? We must wait and see.

However, I feel sure that we have not heard the last of Judge Peck and the case of Da Silva nor, I suspect, of predictive coding.