Recent cases show predictive coding hasn’t entirely replaced earlier technology

Courts have consistently ruled only that e-discovery must be reasonable

Last year, Magistrate Judge Andrew Peck of the U.S. District Court for the Southern District of New York issued the first judicial opinion recognizing predictive coding, also known as technology-assisted review, as a legitimate e-discovery tool. Since that opinion, the focus of the e-discovery world has been on predictive coding, seen by many as a more accurate way to identify relevant electronically stored information (ESI) for discovery than the predecessor technology, keyword searching. Other federal and state courts have followed Peck’s lead.

However, the cost effectiveness of an ESI production plan can vary considerably depending on such factors as the importance of the issues, size of dataset and resources of the parties. Specifically, keyword searching can be substantially less costly than predictive coding. And three recent cases demonstrate that keyword searching remains a defensible e-discovery plan.

In an April 18 opinion, the court held that the issue was not “whether predictive coding is a better way of doing things than keyword searching prior to predictive coding,” but rather, “whether Biomet’s procedure satisfies its discovery obligations.” The court concluded that Biomet was in compliance and accepted its approach.

The court also stated that the cost of the proposed predictive coding review of all 19.5 million documents was not proportional to the “comparatively modest” increase in the relevant documents that would be found.

Michael Kozubek

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