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Kleen-ing Up Da Silva

Predictive Coding & Keyword Search

by Daniel B. Garrie

Many in the blogosphere and e-discovery community thought Da Silva (Da Silva Moore v. Publicis Groupe & MSL Group. 11 Civ. 1279 (S.D.N.Y. Feb 24, 2012)) would lay the foundation upon which Kleen Products (link to most recently available transcripts) (Kleen Products LLC v. Packaging Corporation of America et al.,No. 10 C 5711) and Magistrate Judge Nolan could follow. But what was supposed to be a clean exit for predictive coding has turned into muddy waters since the plaintiffs in Da Silva Moore have entered a second brief in response to Magistrate Judge Peck’s written opinion. In Da Silva, both parties began with a mutual interest in predictive coding, but the mandate handed down in Peck’s oral opinion and the subsequent written opinion was not agreeable to the plaintiffs. Plaintiffs’ brief to District Judge Carter called into question the underlying technology.  It also questioned the ability of Magistrate Judge Peck to advocate for a particular method of electronic discovery, which for the record, I believe is without merit.

In Kleen Products Judge Nolan is being asked by the plaintiffs to require the producing parties to use a particular form of e-discovery, specifically computer assisted review. Plaintiffs believe that defendants’ use of Boolean keyword searches is not reliable enough to meet the standard for reasonableness. Defendants are arguing their method of keyword and phrases meets the requirements of best practices.

The most recent hearing on March 27th was a battle of the experts with the plaintiffs holding firm that the sample size used by the defendants (data from 5 of 17 custodians) was inadequate, but whether this will sway Judge Nolan is another matter altogether.

While many agree that computer-assisted review offers distinct advantages to Boolean keyword searches, having the court mandate that a party use a particular method of technology is arguably overstepping its bounds. Albeit, best practices dictate that the methods used are cost effective, efficient, and reliable; and both parties believe their methods meet this standard. Moreover, the courts have not been inclined to require the most advanced technology for every case at the expense of efficiency and costs.

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Author: Daniel Garrie, Esq. is a renowned e-discovery special master and thought leader in the fields of information security, forensics, e-discovery, information governance, and digital privacy.   Please see the attached article written in the Daily Journal Profile.

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