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E-discovery: Just the FAQs

How not to respond to three common e-discovery questions

As an e-discovery lawyer at a large global law firm, I field many questions. The questions often repeat. When facing the same Frequently Asked Question (FAQ) for the umpteenth time, snappy retorts may spring to mind, usually in the form of a question back. It is important to remind oneself, however, that it is probably just the first time each particular person is posing the question. The questioner deserves a polite and thoughtful answer.

Here are three FAQs in e-discovery, the replies to avoid and some more appropriate responses:

To date, predictive coding has been approved for use in only two published court cases. In one of those two cases, Da Silva Moore v Publicis Groupe & MSL Group, both parties agreed to its use. Even in that case, the plaintiff then objected to the protocol approved by the court. In the other case, Global Aerospace Inc. v. Landow Aviation, the court allowed the use of predictive coding over the plaintiff’s objection, but included little discussion or analysis in the opinion. There is no case, as yet, where predictive coding technology actually has been applied and found to achieve acceptable accuracy levels, so lawyers and technologists are closely following the cases where the technology is now being tried.

The bottom line is that predictive coding technology holds a great deal of promise, but there are hurdles yet to overcome, and it would be risky to rely on predictive coding technology as a substitute for human lawyer review absent the agreement of adverse parties or judicial approval to use the technology.

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David Cohen

David Cohen is the Practice Group Leader of the Records & E-Discovery (RED) Team at Reed Smith LLP.

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