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Federal Court Orders Use of Computer-Assisted Search of Electronic Documents

On April 26, 2012, the US District Court for the Southern District of New York upheld a magistrate judge’s opinion ordering the parties to use predictive coding to review and produce electronically stored information (ESI). This is a key decision because it is the first known federal court ruling that specifically addresses the use of computer-assisted document review.

The court observed that, “[t]here simply is no review tool that guarantees perfection. The parties and Judge Peck have acknowledged that there are risks inherent in any method of reviewing electronic documents.” The court also recognized that manual review with keyword searches is costly and that such review is “prone to human error and marred with inconsistencies from the various attorneys’ determination of whether a document is responsive.” In this case, the defendant was required to search a large amount of ESI as part of the discovery process.

What is likely important in the judge’s decision is that plaintiffs’ counsel had the opportunity to participate in the ESI search process. Plaintiffs’ counsel was allowed to provide keywords for the keyword search and was also entitled to review documents and the issue coding before production of the ESI. Plaintiffs’ counsel was also entitled to raise any relevance concerns with the magistrate before final production. Another likely key issue for the judge was that the parties produced an extensive and detailed proposed protocol related to ESI. It detailed the extensive level of participation by plaintiffs’ counsel in the search process. For example, the protocol provided that the defendant “will review 4,000 randomly sampled documents from Plaintiffs’ supplemental list of key words to be coded for relevance and issue tags.” And, the defendant “will provide Plaintiffs' counsel with all non-privileged documents and will provide, to the extent applicable, the issue tag(s) coded for each document.”

As the volume of ESI increases, it will be increasingly necessary for producing parties to use computer-assisted review tools. While it is too early to tell whether the process ordered by the New York court will be successful, this decision by a federal district court will likely influence future discovery disputes related to ESI and computer-assisted search methods. Additionally, this opinion and the ESI search protocol submitted by the parties to the court provides a framework for any party handling ESI discovery.

If you would like a copy of the opinion or a copy of the search protocol used by the parties in the case, please contract Brandon McGrath. 


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Bingham Greenebaum Doll LLP is a progressive business law firm with nearly 250 professionals serving regional, national and international clients. For more information, visit www.bgdlegal.com

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