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.
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.
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.”