Roitblat Publishes Critique: Argument in Da Silva Moore Case Isn’t About Predictive Coding

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Expert Calls Plaintiffs' Lawyers' Brief “Slash and Burn” Advocacy

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They are objecting to the protocol that gives them the keys to the eDiscovery candy store. In return, they propose to burn down the store and eviscerate the landlord.

OrcaTec’s Dr. Herbert L. Roitblat, Ph.D., a well-known pioneer in eDiscovery and predictive coding technology, yesterday issued an article critical of the Plaintiffs’ lawyers' tactics related to Judge Andrew Peck’s decision in Da Silva Moore, et al. v. Publicis Groupe & MSL Group (11 Civ. 1279 in the Federal District Court for the Southern District of New York).

Roitblat, OrcaTec’s CTO and chief scientist, said in the article that the Da Silva Moore case has been generating a great deal of attention in eDiscovery circles, first for Judge Peck’s Feb. 24 decision supporting the use of predictive coding, and then for the challenges to that ruling presented by the Plaintiffs.

“The eDiscovery issues in this case are undoubtedly important to the legal community so it is critical that we get them right,” Roitblat said.

In the blog article posted on and on the OrcaTec website (, Roitblat especially objects to the Plaintiffs’ personal attacks on Judge Peck, which were picked up as truisms by the eDiscovery certification group ACEDS (

Roitblat, a longtime professor well-known in the legal technology industry for laying out scientific arguments in a way that non-scientists can understand, states unequivocally that the continuing issue in Da Silva Moore is not, as many claim, about the use of predictive coding. “The current disagreement embodied in the challenge to Judge Peck’s decision is not about the use of predictive coding per se. The parties agreed to use predictive coding, even if the Plaintiffs now want to claim that that agreement was conditional on having adequate safeguards and measures in place. Judge Peck endorsed the use of predictive coding knowing that the parties had agreed. It was easy to order them to do something that they were already intending to do.”

Instead, Roitblat states, the main disagreement “seems to be about whether to measure the success of the process using a sample of 2,399 putatively non-responsive documents or a sample of 16,555. The rest is a combination of legal argumentation, which I will let the lawyers dispute, some dubious logical and factual arguments, and personal attacks on the Judge, attorneys, and vendor.”

Roitblat’s article clarifies the science of predictive coding, asserting that the Plaintiffs are arguing against their own interests. “They are objecting to the protocol . . . that gives them the keys to the eDiscovery candy store. In return, they propose to burn down the store and eviscerate the landlord,” he wrote.

Roitblat’s conclusion: “The Parties in this case are not arguing about the appropriateness of using predictive coding. The Plaintiffs are objecting to some very specific details of how this predictive coding will be conducted. Along the way they raise every possible objection that they can imagine, most of which are beside the point; they misinterpret or misrepresent data; they fail to realize that they have the very information they are seeking; and they seek data that will not do them any good, all while vilifying the judge, the other party, and the party’s predictive coding service provider. This slash and burn approach to negotiation is far from consistent with the pattern of cooperation that has been promoted by the Sedona Conference and by a large number of judges.”

All of the documents from the case can be seen on the Complex Discovery blog here:

Chris Dale, a well-respected UK eDiscovery blogger, has already commented on Roitblat’s post on his e-Disclosure Information Project, saying: “It has taken Herb Roitblat to articulate what the rest of us found hard to express.” Dale’s blog can be seen here:

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