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Da Silva Moore v. Publicis Groupe - 287 F.R.D. 182 (S.D.N.Y. 2012)


While computer-assisted review is not perfect, the Federal Rules of Civil Procedure do not require perfection. Courts and litigants must be cognizant of the aim of Fed. R. Civ. P. 1, to secure the just, speedy, and inexpensive determination of lawsuits. Rule 1. That goal is further reinforced by the proportionality doctrine set forth in Fed. R. Civ. P. 26(b)(2)(C).


Five female plaintiffs, Da Silva Moore et al., sued defendant Publicis Groupe, "one of the world's 'big four' advertising conglomerates," and its United States public relations subsidiary, defendant MSL Group, for gender discrimination. Plaintiffs alleged that defendants have a "glass ceiling" that limits women to entry level positions, and that there is "systemic, company-wide gender discrimination against female PR employees like Da Silva Moore et al..”  During trial, the parties' agreed protocol for predictive coding to find to find electronically-stored information in a discovery context was approved. While plaintiffs' objections to the magistrate's rulings were pending, he commented on the use of predictive coding during discovery.


Was the use of predictive coding to find electronically-stored information in a discovery context acceptable?




The Court held that the acceptance of the predictive coding protocol was not contrary to Fed. R. Evid. 702 and Daubert as they dealt with the trial court's role as gatekeeper to exclude unreliable expert testimony from being submitted to the jury at trial, not the production of documents during discovery.

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