Magistrate Judge Andrew J. Peck has observed that judicial understanding and resolution of ediscovery disputes can benefit from “bring your geek to court day” — where those knowledgeable about ESI issues in a case participate in court conferences. As we predicted, the Supreme Court isn’t yet ready for Bring Your Geek to the Supreme Court Day.
On Monday, as Monica Bay aptly put it in Law Technology News, “[t]he United States Supreme Court . . . declined to participate in the ongoing e-discovery soap opera/saga” in Da Silva Moore.
On its face, the petition for certiorari involved the appropriate standard for review of a decision that rejected recusal of Judge Peck from a case based on his publicly stated views on technology assisted review (TAR) and his participation in organizations, seminars and other events that cover the development of TAR. But the petition targeted what it described as “a global precedent in favor of predictive coding — a technique that had never before been adopted, and that is now (in large part thanks to Judge Peck) gaining footing.”
Does this denial of certiorari change the landscape for machine learning in litigation? No. In the time since Judge Peck issued his decision in Da Silva Moore, has the world reached agreement on how and when advanced search methods should be deployed in litigation? Perhaps not agreement, but certainly evolution in thinking, as evidenced by the June 2013 DESI V Workshop, Standards for Using Predictive Coding, Machine Learning, and Other Advanced Search and Review Methods in E-Discovery.
In many cases, which you do not and generally will not read about, parties are negotiating the terms of search and review in discovery. But standardization across dockets and technologies presents more complicated questions, as Jason Baron noted in his report on the DESI V Workshop.
But Bring Your Geek to the Supreme Court Day is off the calendar, for now.