Published: March 2, 2012
"This judicial opinion now recognizes that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases."
Magistrate Judge Andrew Peck, of the U.S. District Court for the Southern District of New York made e-discovery headlines late February with the first judicial endorsement of predictive coding. I'll leave it to the legal eagles to debate the courtroom implications, but it's a significant stamp of approval from the bench.You can read more from LTN, Forbes, Chris Dale, and Recommind, whose Axcelerate software is involved in the case.
In practice, many people have already adopted predictive coding. So the interesting question to my mind is: how are we going to agree on using it (or misusing it)? Judge Peck stated further:
"The Court recognizes that computer-assisted review is not a magic, Staples-Easy-Button, solution appropriate for all cases. The technology exists and should be used where appropriate, but it is not a case of machine replacing humans: it is the process used and the interaction of man and machine that the courts needs to examine."
Arguments between the parties involved bear this out. First, how to agree on how many responsive documents are produced? Early on, the defendant volunteered to produce the 40,000 most-responsive documents determined by the computer once trained - which was dismissed by Judge Peck as potentially eliminating too many responsive results.
The Court rejected MSL's 40,000 documents proposal as a "pig in a poke." (1/4/12 Conf. Tr. at 51-52.) The Court explained that "where [the] line will be drawn [as to review and production] is going to depend on what the statistics show for the results," since "[p]roportionality requires consideration of results as well as costs. And if stopping at 40,000 is going to leave a tremendous number of likely highly responsive documents unproduced, [MSL's proposed cutoff] doesn't work."
This led to further arguments on how to create a seed set to determine responsiveness, etc., much of which are detailed in the court documents if you're curious. It should disabuse anyone of the notion that predictive coding will relieve us of lawyers. Using it can require a lot of negotiation (and math) to agree on methods.
I've read a few industry arguments that this means predictive coding is too difficult or non-user-friendly - with which I disagree (depending on the tool). It's just not always easy to agree on terms in our adversarial court system, particularly in an early adoption phase. My hope is this opinion changes that for the better, or at least encourages parties to raise the bar and arrive more prepared. The benefits are there, and the genie's not going back in the bottle.
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