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E-discovery: Saving your company money with predictive coding and cooperation

Innovative technologies won’t save you money if you don’t cooperate with opposing counsel

Document review is often the most time-consuming and costly aspect of litigation. The traditional, linear (manual) review model can result in your organization paying law firms and contract attorneys millions of dollars to review large volumes of documents, often under strict time constraints. In your struggle to reconcile declining profits with increased litigation expense, innovative technologies like predictive coding can significantly reduce your company’s document production expense. Predictive coding’s success in mitigating discovery costs, however, hinges on the involvement of, and cooperation with, plaintiffs’ counsel.

Predictive coding arguably is the marquee e-discovery topic of 2012. The reason for the widespread interest in the technology is clear: despite advances in e-discovery, document review is still expensive, time consuming and fraught with risk and coding inconsistencies. The volume of electronically stored information (ESI) continues to balloon. According to one information technology research firm, unstructured data are growing exponentially at nearly 62 percent per year, with 1.2 zettabytes of digital information created in 2010 alone. Predictive coding can help your organization undertake a more efficient and accurate review of what can be hundreds of millions of documents in any given litigation.

Interest in predictive coding peaked when Judge Andrew Peck endorsed the technology in DaSilva Moore v. Publicis Groupe, followed by Judge Chamblin’s decision in Global Aerospace Inc. v. Landow Aviation, in which he ordered use of predictive coding even without plaintiffs’ agreement. These decisions legitimize the use of predictive coding and provide much needed assurance to organizations that have been wary of employing the technology out of fear a court may not deem it defensible. A virtual exhale could be heard as organizations like yours read Judge Peck’s order, “this judicial opinion now recognizes that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases.”

Despite judicial acceptance of predictive coding, the cost savings offered by the technology are quickly nullified when the parties cannot agree on its application. DaSilva Moore is a case in point. The parties initially agreed to use predictive coding but later disagreed about how to employ the technology, resulting in considerable time and expense addressing the discovery dispute in court. Similarly, in Global Aerospace, the court ordered the use of predictive coding only after defendants sought a protective order permitting its use over plaintiffs’ objection. The fight over the use of the technology, however, swallowed much of the litigation cost saved by avoiding the estimated 20,000 hours and $2 million defendants estimated a manual review would have entailed.

In order to truly realize the cost and time savings allowed by predictive coding, we first need to get our adversary to cooperate with us, and we need to cooperate with them. Contrary to what many lawyers believe, ‘cooperation’ is not a bad word, particularly in the context of discovery. The Sedona Conference recognized this fact when in 2009 it advanced its “Cooperation Proclamation,” a “national drive to promote open and forthright information sharing, dialogue…and the development of practical tools to facilitate collaborative, transparent discovery.” There are no winners when parties take a recalcitrant approach to discovery; rather discovery often becomes a sideshow resulting in increased legal fees for all parties.

So we need to educate plaintiffs wary of or unfamiliar with the technology that they too will reap its benefits—getting ‘better’ documents quicker and cheaper—and engage them in the drafting of the predictive coding protocol. Judge Rebecca Doherty’s July 27, order in In re: Actos Products Liability Litigation outlines the provisions found in traditional ESI agreements and includes comprehensive predictive coding protocols that were agreed upon by all parties. Following the Actos model and agreeing to a predictive coding protocol with plaintiffs can help your company mitigate the high costs of document review in a given litigation.

With the ever-escalating volume of data and the expense of document review, your company must continue to explore innovative ways such as predictive coding to reduce the costs of discovery. The savings your organization can realize from technology assisted review, however, can be wiped away by the costs of fighting over the actual technology or its implementation. Open and forthright information sharing and cooperation with your adversary is a must. Your company’s bottom line and your litigation budget depend upon it.

Contributing Author

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James Freebery

James J. Freebery is a trial lawyer and partner in the Wilmington, DE office of law firm McCarter & English LLP, where he focuses...

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Contributing Author

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Makenzie Windfelder

Makenzie Windfelder is an associate in McCarter’s Product Liability group in Wilmington, DE. As a member of the firm’s E-Discovery Committee, she has considerable...

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