E-discovery: Using predictive coding to manage e-discovery costs and risks

Predictive coding replaces manual review with iterative search methods

A common dilemma faced by general counsel when their companies are confronted with litigation is handling the volume of electronically stored information (ESI), particularly the associated costs of collecting, reviewing and producing relevant ESI. Frequently this cost dominates the e-discovery process.

Although different ways to manage ESI exist, the default approach has typically been the time-honored manual review and coding of each individual document by the outside attorneys handling the litigation or contract attorneys retained for the purpose of at least conducting an initial screening.

The software then uses an iterative search process and algorithms to automatically classify and retrieve a set of documents based on the criteria provided by the lawyers. The results are then measured for accuracy. This iterative process can be repeated multiple times if necessary to effectively “train” the computer to predict the relevancy of the remaining documents and eliminate any irrelevant documents.  Relevant documents can then be grouped in categories for purposes of prioritization and selection for review.

While predictive coding requires some manual review, the primary difference from a full manual review is that predictive coding requires significantly less time since only a small subset of documents are evaluated instead of the entire collection.

These two concerns naturally lead to a more important pair of concerns—defensibility if challenged in court, and the protection of privileged documents.  Federal Rule of Civil Procedure 26 imposes a reasonable inquiry requirement in connection with document searches and production.

Thus, there is an open question whether predictive coding is sufficiently rigorous and transparent that a court would be satisfied that its use met this reasonableness standard, particularly in view of Federal Rule of Civil Procedure 37(a)(4), which provides that “an evasive or incomplete disclosure, answer or response must be treated as a failure to disclose, answer, or respond.”  

Contributing Author

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R. Eric Hutz

R. Eric Hutz is a patent litigation, licensing, and counseling partner at Connolly Bove Lodge & Hutz LLC. He represents clients in various patent and...

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