There has been a lot buzz about new technologies that can do document review with little to no human involvement. Some believe that technology-only reviews are better and faster than attorney-only reviews. But, if done correctly, attorney-led reviews can both streamline the review and teach the legal team the case in real-time in ways that technology alone just can’t.
While it is true that “traditional” attorney-only reviews can be overly expensive and not always accurate, new technologies that promise to lower costs also have problems of their own. Legal standards for defending the results produced by these predictive coding tools have not yet been developed. And no one is sure what level of outside testimony will be needed to prove the reliability of productions from tool-only reviews.
And no one is sure what admissibility standards will govern when the parties haven’t reached agreement on the use of predictive coding. Though judicial commentators encourage the use of analytic tools, they also recognize that the results the tools produce must be defensible. In Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008), Judge Grimm addressed the level of proof needed when parties disagree on the adequacy of the search method used. He said that, “[s]hould their selection be challenged by their adversary, and the court be called upon to make a ruling, then [the offering party] should expect to support their position with affidavits or other equivalent information from persons with the requisite qualifications and experience, based on sufficient facts or data and using reliable principles or methodology.”
Keeping human eyes involved in the review process boosts the functionality of current e-discovery tools. This common-sense approach streamlines the review process, minimizes the risk of production of privileged and non-relevant documents and yields defensible results.