Analysis of Important New Case on Predictive Coding by a Rising New Judicial Star: “Winfield v. City of New York”

Extract from article by Ralph Losey

Judge Parker’s Order in Winfield v. City of New York (15-CV-05236) resolved a discovery dispute, which, among other things, challenged the Defendant City’s predictive coding process, in other words, it’s machine learning search. That challenge involved issues of transparency and relevance. Experts on predictive coding were apparently involved (although it looks like they were not retained until fairly late in the dispute). At that point the issues became much more technical and sophisticated. The plaintiffs wanted to know more about the defendant’s machine learning process, and the defendant did not want to share that. Instead, defendant invoked the attorney work-product secrecy cloak and good old, and I mean old, Sedona Principle Six. Protecting the Fourteen Crown Jewels of the Sedona Conference in the Third Revision of its Principles (my article requesting that Principle Six be updated).

Judge Parker then went hands-on, as a good judge should, and required in camera submissions. Then, after she was fully informed, she rendered this decision. Textbook procedure for how to resolve complex e-discovery issues. Note especially that she did not need expert testimony, nor a mini-trial, nor extensive discovery about discovery, to render her decision. These are all things that many naysayers on predictive coding all said would happen. Aside from the ill-fated expert testimony for days on end by Dave Lewis and Dan Regard in Kleen Products back in 2012, it hasn’t happened. Kleen Products, LLC, et al. v. Packaging Corp. of Amer., et al.Case: 1:10-cv-05711, Document #412 (ND, Ill., Sept. 28, 2012).

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