District Court Judge to Have Last Word on Computer-Assisted Review, Grants Plaintiffs’ Motion to Allow Additional Briefing

Da Silva Moore v. Publicis Groupe SA, No. 11 Civ. 1279 (ALC) (AJP) (S.D.N.Y.)

On March 13, 2012, approximately 2 ½ weeks after Magistrate Judge Andrew Peck issued his much-talked about opinion approving “computer-assisted review,”  District Court Judge Andrew L. Carter, Jr. has granted plaintiffs’ request to submit additional briefing on their objections to the ruling.

Briefly summarizing the procedural posture of this case, the parties attended a hearing on February 8, 2012 to discuss their discovery protocol, and in particular the use of computer-assisted review (“predictive coding”).  At that hearing, Magistrate Judge Andrew Peck issued an oral ruling which approved the use of computer-assisted review and required the parties to submit a draft protocol for court approval.  On February 22, 2012, over plaintiffs’ objection (indicated in the last paragraph of the proposal: “Plaintiffs object to this ESI protocol in its entirety”), Magistrate Judge Peck approved the proposed protocol that had been submitted.  On that same day, plaintiffs filed their lengthy objections to the February 8th discovery rulings, asserting that the “Magistrate’s decision to adopt [defendant] MSL’s predictive coding protocol is clearly erroneous and contrary to law.”  Specifically, plaintiffs argued that the use of “predictive coding” in the present case (employment discrimination) violates Federal Rule of Civil Procedure 26 and criticized the court’s adoption of a “novel discovery methodology” without “supporting evidence” or “standards for assessing reliability,” among other things.  On February 24, 2012, Magistrate Judge Peck issued his written opinion memorializing his rulings from the February 8th hearing.  Thereafter, on March 7, 2012, defendant filed its opposition to plaintiffs’ objections.

On March 9, 2012, plaintiffs submitted a letter to District Court Judge Andrew L. Carter, Jr. asking for leave to file a reply to defendant’s response.  In that letter, plaintiffs argued that Magistrate Judge Peck’s written ruling, issued two days after their objections were filed, “expanded on the reasoning for the rulings he had made from the bench,” including relying on “a number of articles that were not addressed in the parties’ submissions” and making observations about plaintiffs’ objections.  Accordingly, plaintiffs sought the opportunity to “squarely address Magistrate Judge Peck’s complete rulings.”  Plaintiffs also argued that allowing their reply would not result in prejudice where the defendant had “the benefit” of filing its opposition to plaintiffs’ objections after the written ruling was issued and thus had the opportunity to consider Magistrate Judge Peck’s analysis when crafting their response.

On March 13, 2012, Judge Carter granted plaintiffs’ request and ordered their reply be submitted by March 19, 2012.

A copy of plaintiffs’ objections is available here.
A copy of Magistrate Judge Peck’s written ruling is available here.
A copy of defendant’s response is available here.
A copy of plaintiffs’ March 9, 2012 letter to Judge Carter is available here.