The eDiscovery Legacy of Judge Andrew Peck: Cooperative Advocacy and Technology

The federal judiciary recently lost one of its more talented members when United States Magistrate Judge Andrew Peck retired from the bench last month. Throughout his judicial career, Judge Peck was at the forefront on discovery practice issues. Various articles and events have celebrated the advancements his opinions made on eDiscovery law.

In reviewing his judicial accomplishments, commentators have generally spotlighted Da Silva Moore v. Publicis Groupe[i] and Judge Peck’s other opinions that addressed the use of technology-assisted review (TAR) as his most impactful decisions. And yet, one of Judge Peck’s most significant but perhaps under-appreciated opinions is William A. Gross Construction Associates, Inc. v. American Manufacturers Mutual Insurance Company.[ii] Issued in 2009, Judge Peck used the Gross Construction case to bring attention to the need for a more cooperative and technologically effective approach to the use of search methodologies in discovery.

The Gross Construction Case

In Gross Construction, the parties to a construction project dispute sought production of various emails from the construction manager. While a nonparty to the case, the construction manager’s emails were under the control of the project owner, which agreed to manage the production of those messages to the other parties in the litigation. To identify relevant information, the owner proposed using search terms to cull through the manager’s emails.

Nevertheless, the parties were unable to reach an agreement on the nature of the search terms. While the owner suggested relatively few search terms, the other parties proposed “thousands of additional search terms.” Worse, the terms the other parties suggested included various generic terms associated with construction projects. If used, those terms would retrieve nearly every message (regardless of relevance) from the manager’s email server.

Beyond the lack of cooperation, the parties had little insight from the manager as to how to design the terms. Despite having the best understanding of the “nomenclature” used by its employees in the emails, the manager (as a nonparty) declined to get involved in the process of designing the terms.

Without the manager’s institutional knowledge and because the parties could not otherwise reach an agreement on the terms, the parties sought relief from Judge Peck. While not a “keyword expert” and though lacking familiarity with the matter possessed by the parties, Judge Peck was able to help the parties reach a compromise on the nature and number of terms needed to begin probing through the emails.

After resolving the parties’ disagreement, Judge Peck vigorously emphasized the need for cooperation, transparency, and substantive input from custodians (all of which were lacking in Gross Construction) to design effective search term protocols. He also spotlighted the importance of quality assurance measures such as sampling to better gauge the accuracy of proposed search terms.

Finally, and perhaps most importantly, Judge Peck emphasized the limitations that search terms have as a search methodology. Relying on case law and renowned discovery experts such as the late Browning Marean, Judge Peck pointed to both the over-inclusive and under-inclusive nature of search terms as undermining their effectiveness in certain instances.

The Impact of Gross Construction on Discovery Practice

At the time it was issued nine years ago, Gross Construction could have been viewed as an insignificant decision that resolved a minor search term dispute. Viewed through the lens of perspective, however, Gross Construction is a landmark discovery opinion.

With a concise yet forceful approach, Judge Peck used Gross Construction to help usher in a new era of cooperative advocacy. His efforts, coupled with those of other jurists and The Sedona Conference, would eventually result in the emphasis on adversarial cooperation in the 2015 amendments to the Federal Rules of Civil Procedure. Cooperation in discovery is now viewed as a best practice that, where practicable, provides for a more efficient discovery process.

Gross Construction also presaged the use of more effective discovery search methodologies. By spotlighting the systemic issues with search terms, Gross Construction opened the door to the use of analytics including concept search, data clustering, and technology-assisted review (TAR). Indeed, Judge Peck’s opinion in Da Silva Moore – which recognized that TAR is an acceptable discovery search methodology – relied extensively on Gross Construction to spotlight certain limitations of search terms.

Gross Construction represents one of several key opinions that Judge Peck authored on discovery issues. Like many others involved in discovery, we are grateful for the contributions that Judge Peck has made during his time on the bench to “moving the law in a reasoned and just way.” We wish him the best in his next endeavors.

[i] Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012).

[ii] William A. Gross Const. Associates, Inc. v. American Mfrs. Mut. Ins. Co., 256 F.R.D. 134 (S.D.N.Y. 2009).

Written by: Philip Favro

Innovative Driven acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Philip Favro provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Philip Favro is available to serve as a special master on issues related to electronic discovery. Philip Favro is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Philip Favro is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Philip Favro practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.

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