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March 28, 2012

Da Silva Moore Fury

TargetI'm late to the party, because I actually took a real vacation to Florida for spring training, but I came back to find that the blogosphere is atwitter with reactions to the Da Silva Moore v. Publicis Groupe & MSL Group plaintiffs' comments about United States District Court (New York) Magistrate Judge Andrew Peck in the plaintiff's March 19 reply brief filed by Sanford Wittels & Hesler. The matter is now pending before U.S.D.C. Judge Andrew Carter. (Peck won the 2011 Law Technology News Innovation Award for Champion of Technology for his work educating the legal community about litigation technology).

* To first bring you up to speed, here's Peck's Feb. 24 opinion. Here's K&L Gates' March 21 report on the plaintiff's reply brief, which is now pending before District Court Judge Andrew Carter.

Here are some of the most vibrant discussions:

* Brandon D. Hollinder: eDiscovery News' "Update - Plaintiffs Attack Judge Peck's Da Silva Moore Predictive Coding Order Again." An excerpt: "From the outset, there was a noticeable undertone of animosity towards Judge Peck running throughout the Reply. Plaintiffs took the opportunity to play up the connection between Judge Peck and defense counsel Ralph Losey (who is also regarded as a thought leader in the e-discovery industry and is the author of a widely disseminated blog among other things), and to a lesser extent Recommind, the software vendor whose computer-assisted review platform will potentially be used in this matter.

Plaintiffs dedicate the first two pages (out of 14 total, and only 11 of which address the predictive coding dispute) to the recent professional relationship between Judge Peck and Mr. Losey, which has focused on the endorsement and discussion of predictive coding at various industry events around the country." [Losey is an author of LTN's EDD Update blog.]

* Herb Roitblat, of OrcaTec, dives into the discussion, on the Information Discovery blog, here. His opening lines: "The Plaintiffs in the Da Silva Moore case have gone far beyond zealous advocacy in their objection to Judge Peck's order. The Plaintiffs object to the protocol (see the protocol and other documents here) that gives them the keys to the e-discovery candy store. In return, they propose to burn down the store and eviscerate the landlord."

* eDiscoveryJournal: "Da Silva Moore Fast Becoming Landmark eDiscovery Case," by Barry Murphy:
"I have heard Judge Peck speak on several occasions and he is always careful to not tout any particular technology.  Rather, he talks about how the use of various technologies, when married with the right process and backed up by the right statistics, can be more effective than traditional approaches to eDiscovery search.  To say that he touts predictive coding technology is really mincing words, in my opinion.  In fact, Judge Peck makes the point that collaboration is the key when it comes to using TAR. The two sides must get together early in the case and agree on how it will be used.  At LegalTech early this year, Peck made it a point to say that he did not see it as the Court’s responsibility to dig into algorithms or technology and approve specific one’s as viable.  Rather, he expected the two parties to cooperate on the use of TAR.  Memorably, much of the room chuckled at the word cooperate.  This case illustrates why." 

* LTN columnist Craig Ball, with his trademark wicked wit, skewers those who attack Peck in "Putting the Duh in Da Silva Moore," on his blog, here. He compares the plaintiffs' actions to the most absurd and entertaining litigation of 2011, the Victor Stanley/Creative Pipe warfare: "The plaintiffs, whose QA and sampling values were rejected, have every right to complain about the metrics. Where predictive coding is concerned, the devil is very much in the details. But their pairing of valid concerns with a sleazy personal attack on the judge has to be one of the dumbest moves to come down the e-discovery pike since Creative Pipe named its line of stolen garbage can designs FUVISTA (for F*** yoU VIctor STAnley). It puts the duh in Da Silva Moore."

See also: Peck's "Search, Forward" article from the Oct. 2011 edition of Law Technology News.

* Complex Discovery's "Update" roster re: documents about "Peck, Parties and Predictive Coding."

Update: 3/29: Other commentary (not addressing the reply brief):

* "Judge Peck Addresses Predictive Coding in Federal Court Order," by Sean Doherty, LTN website.

* "Global E-Discovery & Da Silva Moore Technology Assisted Review Case Overview," ESI Report by Michele Lange (podcast) featuring Jim Daley of Daley & Fey.

* "Lessons Learned," by Rebecca Shwayri, LTN website.

* eDiscovery 2.0 post analyzing recent U.K. sanctions order.

* Predictive Coding in Andrew Peck's Court, by Michael Roach, EDD Update.



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