In Da Silva Moore, the parties initially agreed to use predictive coding (although they never agreed to all of the details) and Magistrate Judge Peck allowed its use. Plaintiffs have since attacked Judge Peck and most recently formally sought his recusal from the matter. That request is currently pending.
Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles, is the most recent case to address predictive coding, and it goes a step further than Da Silva Moore. In Global Aerospace, the defendants wanted to use predictive coding themselves, but plaintiffs objected. Virginia County Circuit Judge James H. Chamblin, ordered that Defendants could use predictive coding to review documents. Like Da Silva Moore, the court did not impose the use of predictive coding, rather, the court allowed a party to use it upon request.
Kleen Prods., LLC v. Packaging Corp. of Am. goes the furthest, and is perhaps the most interesting of the three predictive coding cases because it is different than Da Silva Moore and Global Aerospace in one very important way: the plaintiffs in Kleen are asking the court to force the defendants to use predictive coding when defendants review their own material. The court has yet to rule on the issue.
These three cases are in the spotlight because the use of predictive coding is seemingly at issue, and yet, in some ways, predictive coding is only marginally at issue. Yes, in one sense the courts are ruling upon the technology itself and whether it is viable; if a court allows it to be used, it is implicit recognition that the technology works, at least enough to try it out and see how it goes. However, these cases are really about who gets to choose the technology and method utilized. These cases and disputes could exist with fact patterns where the parties are arguing over key word searches or linear review and the analysis would be much the same as they are now with predictive coding. Can the parties pick and agree to a review method and technology? In Da Silva Moore, Judge Peck said yes. Can one party pick how they perform their review? The Virginia court in Global Aerospace said yes. Can one party force another party to use certain technologies and methods to perform their review? The Kleen court has yet to rule on the issue.
These questions are not new and novel and so far, the answers have not been so either. Yes, they have allowed the parties to use predictive coding, but like with other technologies, the courts have taken a wait and see approach. If the predictive coding technologies and/or processes used are unsuccessful in meeting obligations and needs, the courts appear more than willing to make adjustments, and perhaps embrace different technologies at that time; they are willing to give predictive coding a shot, but they are not betting the house on it either.
It is understandable why proponents of predictive coding are happy and view these cases as victories. After all, these are the first opinions approving the technologies use, even if in a somewhat implicit manner. However, the industry and the legal community must wait before drawing our final conclusions. Only after a party has successfully used predictive coding in a case and survived a challenge of the results/end product (not just a challenge of its use) and it is captured in written opinion or order, will a true victory be won by predictive coding proponents. Until then, predictive coding is still the equivalent of a highly rated draft pick; there is a lot of potential, and most people think it will succeed, including myself, but it still needs to prove itself in the trenches. The predictive coding industry is bullish about its potential for success, and it may only be a matter of time until they are proved right, but only time will tell.