A federal judge has granted conditional class certification in a lawsuit that is a test case for the use of predictive computer-assisted coding to search electronic documents for responsive discovery. Southern District Judge Andrew Carter (See Profile) issued an order in Moore v. Publicis Group, 11, Civ. 1279, where women employees of the advertising conglomerate Publicis Groupe and its U.S. subsidiary, MSL, are accused of company-wide discrimination, pregnancy discrimination and a practice of keeping women at entry-level positions with few opportunities for promotion. “Courts have conditionally certified classes where the plaintiffs have different job functions,” Carter said. Plaintiffs have to make a showing that they are similarly situated to one another “and the potential opt-in members and Plaintiffs here have accomplished their goal,” he said.
Carter’s decision comes on the heels of the refusal of Magistrate Judge Andrew Peck (See Profile) to recuse himself from handling discovery in the case (NYLJ, June 20). Peck has championed predictive coding to wade through millions of emails. He rejected claims that his advocacy of the practice and his pressure on the Moore plaintiffs to use it gave the appearance of bias.
