In Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012), affirmed, 2012 U.S.Dist. LEXIS 58742 (2012), a much-written-about opinion, Magistrate Judge Andrew Peck, a jurist highly regarded for his knowledge of e-discovery, held that a party could be compelled to use predictive coding, over objections as to its reliability, to review electronically stored information for discovery production.
In In re Biomet M2a Magnum Hip Implant Products Liability Litigation, No. 3:12-md-02391-RLM-CAN (N.D. Ind. April 18, 2013), the court held that a party could not be compelled to use predictive coding, despite the argument that it would be far more accurate in identifying responsive ESI than the keyword searching that had been used, because it simply would cost too much money and yield too little in the way of responsive documents. The two opinions appear to reach opposite holdings but do not in fact, they employ similar analyses. A close look at the two cases will help us understand predictive coding on a technical and practical level.
A Bit on Predictive Coding
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