Predictive Path

August 1, 2012Articles Law Technology News

Predictive coding (aka technology-assisted review) involves the use of e-discovery software that helps document reviewers "train" the software to identify relevant documents, using mathematical algorithms. The goal is to minimize the review and production of irrelevant data. Predictive coding has been thrust to the forefront of e-discovery in recent months. Over objections, a federal court in New York and a state court in Virginia have approved the use of predictive coding for review and production of electronic documents in discovery. And a federal court in Illinois is holding hearings on whether the technology should be used to ensure the accuracy of the defendants' production of electronically stored information.

Whether you are looking at predictive coding to control the costs of electronic data discovery or to test the completeness of a document production, these recent developments can, and should, influence your litigation strategy. Parties can always agree to an EDD protocol — if you are looking to employ the technology, seeking an agreement is a good place to start. But, what if the other side refuses? What if your opponent insists on manual review or keyword searches, and won't consent to the efficiencies achieved by predictive coding? Here is a road map to help you secure court approval of predictive coding over objections, summarizing the current legal landscape, gathering relevant resources, and offering insight on how to persuade the court to adopt a predictive coding protocol.

Legal Landscape. Although predictive coding has been around for a while, there are few cases to date. Decisions in three pending actions break new ground and provide the beginnings of relevant guidance:

»Da Silva Moore v. Publicis Groupe, 2012 WL 607412 (S.D. N.Y., Feb. 24, 2012). United States Magistrate Judge Andrew Peck, a noted EDD expert, approved the use of predictive coding to aid in the review and production of approximately 3 million electronic documents. On April 25, 2012, Judge Andrew Carter, Jr., adopted Peck's decision. Peck explained that Da Silva Moore should be read to acknowledge that "computer-assisted review is an available tool and should be seriously considered for use in large-data-volume cases where it may save the producing party (or both parties) significant amounts of legal fees in document review."

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This article also appeared The Legal Intelligencer and the New Jersey Law Journal.