Predictive Coding and Court Approval: Da Silva Moore and After

Predictive coding, also called technology-assisted review or computer-assisted review, uses human judgments about sample documents to train or guide software in prioritizing potentially relevant electronically stored information (ESI). In Da Silva Moore v. Publicis Groupe, the U.S. District Court for the Southern District of New York considered a parties’ negotiated ESI protocol in a large discovery matter. The February 2012 order allowed computer-assisted review under that protocol, with iterative review and transparency provisions. The decision was an early judicial approval in its factual setting, not a rule that predictive coding must be used or that a particular vendor or tool is endorsed. The court emphasized circumstances including the parties’ agreement, large document volume, available alternatives, cost and proportionality, and the proposed process’s transparency. A later district-judge order affirmed the magistrate judge’s discovery ruling under the applicable deferential review standard. Neither order declared the software infallible; the record recognized that no review method guarantees perfection. For modern discovery, counsel should agree on scope, responsiveness criteria, training and validation samples, privilege handling, production format, and quality control where appropriate. Monitor recall and precision as useful measures, but explain sampling limits and the consequences of errors. The case does not decide every future protocol or replace the Federal Rules, local rules, or case-specific judicial discretion. Treat it as an example of a court evaluating a transparent, negotiated protocol, not as blanket approval of any automated review process. In practice, the parties should clarify what counts as responsive before training, and specify how privileged material will be screened. Quality control can include a second-level review of selected nonresponsive documents and additional review when sampling reveals uncertainty. A negotiated protocol should explain who receives information about the process and how disputes are brought to the court.