Published: April 3, 2012

Live at the E-discovery Witch Trials

Judge Peck filed an order yesterday in response to the plaintiff's request for his recusal in the Da Silva Moore case. In it he defends his earlier opinion and his reputation, closing with a call for a return to civility.

"If plaintiffs were to prevail, it would serve to discourage judges (and for that matter attorneys) from speaking on educational panels about ediscovery (or any other subject for that matter). The Court suspects this will fall on deaf ears, but I strongly suggest that plaintiffs rethink their "scorched earth" approach to this litigation."

It's been unseemly, the brinksmanship and attempted public putsch against Judge Peck. Everything seemed like a discovery "win-win" in a landmark case vindicating computer-assisted review; but now we need a martyr for the cause. Either Judge Peck takes the fall for a vast predictive coding conspiracy, or (if the plaintiff's accusations turn out to be slightly exaggerated), then the plaintiff could be accused of calling a witch hunt.

Because it's seemed a lot like a witch hunt against technology and its advocates. Probably nobody will call it that since it's not politically correct and we're dealing with a gender discrimination case to begin with. But ask yourself: Why are they attributing magical powers (and blame) to technology, instead of reasoning out arguments and protocols? Why are they attacking everyone involved personally and professionally? Why are they instilling fear in other litigants who might use computer-assisted review? Or legal professionals who speak publicly about it?

If we're elevating this to a landmark case and setting a precedent, will it be one of justice and progress? Or will it be one of paranoia, sensationalism, and grinding the courts backwards hundreds of years?

Wikipedia tells me that "the Salem witchcraft was the rock on which the theocracy shattered." Let's hope this case is the rock on which the theocracy of manual review is shattered.  We don't need blind faith in traditional methods. We don't need martyrs - either litigants or judges. We don't need dramatics. We need to get past scare tactics and back to the practices of law and computer science.

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Katey Wood covers the e-discovery, archiving, content and records management, enterprise search, and text analytics markets. In this role, Katey produces qualitative and quantitative research including economic validations, technology validations, and user surveys regarding legal and IT systems maturity. She also advises users, software vendors, service providers, and financiers on strategic technology and business initiatives.

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