For the first time, a federal district court has allowed the use of computer-assisted document review for electronic discovery purposes. In its February 24, 2012, decision in Da Silva Moore v. Publicis Groupe, No. 11 Civ. 1279 (S.D.N.Y. Feb. 24, 2012), the Southern District of New York approved the use of this technology in a sex-based class action case.
In that case, five female employees claim that Publicis Groupe and MSL Group, Publicis’ U.S. public relations branch, violated Title VII and other employment law statutes by discriminating against female employees in pay and promotion opportunities. MSL denies all allegations, while Publicis challenges the court’s jurisdiction. The plaintiffs have not yet attempted to certify the case as a class action. With around three million electronic documents at play, the parties agreed to conduct computer-assisted document review of the defendants’ electronically stored information. Still, there was some doubt as to whether the Federal Rules of Civil Procedure permitted such review. The court resolved these doubts, holding computer-assisted document review to be appropriate.
Computer-assisted document review is both different than and superior to “keyword” searching. Keyword searching is typically used in electronic discovery as a means of allowing a computer to pick out specified words rather than forcing an attorney to manually comb through each line of text. On the other hand, computer-assisted document review utilizes predictive coding and “sophisticated algorithms to enable the computer to determine relevance” of electronic documents within a mass of electronically stored information. A spam filter is an example of predictive coding. Essentially, early feedback from the reviewer allows the computer to predict what documents will be relevant.
This ruling should let attorneys involved in employment discrimination cases involving extensive electronic discovery consider the use of computer-assisted document review. It is more efficient and cost-effective than traditional forms of electronic discovery. Simply put, electronic discovery might become less burdensome in the near future.