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Has e-discovery been solved by software?

Technology can simplify document review, but human judgment is still an important part of the equation

The latest e-discovery opinion to cause a stir is from a federal magistrate judge well known in the field for his ability to communicate e-discovery “best practices” to practitioners. In Da Silva Moore, et al. v. Publicis Groupe & MSL Group,[1] Magistrate Judge Andrew J. Peck issued the first reported opinion dealing with a technology called “predictive coding.”

While Judge Peck’s comments at the hearing preceding the written opinion were quickly heralded by vendors as officially “validating” predictive coding as a judicially endorsed software product, the opinion specifically rejects this misinterpretation.[2] Rather, Judge Peck states that predictive coding is an appropriate tool for certain cases but should be subject to the same kind of rigorous analysis and testing as other methods of document review:

Predictive coding is a term that has become a buzzword in e-discovery, but seems to have various meanings depending on which software vendor is speaking. Vendors often use the term in conjunction with the enticing moniker “automated review.” Judge Peck uses the term “computer-assisted coding” and defines it as “tools … that use sophisticated algorithms to enable the computer to determine relevance, based on interaction with (i.e., training by) a human reviewer.”

In Da Silva Moore, Judge Peck asked the defendants to agree on a transparent protocol that would include producing the documents used to “train” the software, i.e., the seed documents, as well as the other parameters of the process. While Judge Peck did accept predictive coding as an acceptable tool in this case to facilitate e-discovery, the underlying condition of acceptance—that this acceptance would be contingent on whether it was defensible by being “quality control verified” —would be advisable in any document review technology or process:

Contributing Author

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Adam Cohen

Adam Cohen is Managing Director at Berkley Research Group and a Certified Information Systems Security Professional (CISSP) and former practicing attorney who for more than 20 years...

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Contributing Author

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Jonathan Nystrom

Jonathan Nystrom is an Executive Director with Ernst & Young LLP’s Fraud Investigations and Dispute Services practice. He oversees the technology-enhanced review and analytics services.

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