E-Discovery: Predictive coding decisions may signal change in identifying relevant evidence

After Da Silva Moore, search term filters and human review aren’t your only discovery options

The options available for identifying relevant and responsive electronically stored information (ESI) are increasing. Predictive coding, or computer-assisted review, can now be considered “judicially-approved for use in appropriate cases.” Da Silva Moore v Publicis Groupe & MSL Group, Case No. 11 Civ. 1279, Feb. 24, 2012 Opinion and Order. The Da Silva Moore case noted that predictive coding “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.” Id

In the Da Silva Moore case, Magistrate Judge Andrew Peck described “predictive coding” or “computer-assisted review” as “tools…that use sophisticated algorithms to enable the computer to determine relevance, based on interaction with (i.e., training by) a human reviewer.” Id. A human reviewer, often a senior lawyer, will review and code a “seed set” of documents, from which the computer identifies properties that it will use to code other documents. As the human reviewer codes more documents, the computer will predict the coding; or, the computer will code some documents and ask the human reviewer for feedback.

In another case involving disputed ESI discovery issues, Global Aerospace Inc. v. Landow Aviation, L.P., Case No. CL 61040 (Vir. Cir. Ct.), defendants requested permission to use predictive coding for the processing and production of their ESI. Plaintiffs opposed the request. On April 23, the Virginia Circuit Court granted defendants’ request and issued an Order Approving the Use of Predictive Coding for Discovery.

Contributing Author

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Patricia Antezana

Patricia is a member of Reed Smith's Commercial Litigation Group and has been involved with all phases of litigation, including management of large-scale discovery, dispositive...

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