Wall Street Traders Trust Computers, Why Don’t Lawyers?

A hot legal topic is predictive coding in e-discovery. In the automated approach to reviewing discovery documents for responsiveness, computers do much of the work instead of armies of humans reviewing each document. Those who doubt the reliability - and I would argue inevitability - of predictive coding could learn a lesson from how Wall Street automates trading.

Computers That Trade on the News (New York Times, 23 Dec 2010) reports that the “number-crunchers on Wall Street are starting to crunch something else: the news.” It describes ‘robo-readers", software that digests large volumes of text reports about companies and markets, assessing the meaning of news and social media. The analysis triggers real-time trades, without human intervention.

Predictive (automated) coding is conceptually similar. Just as a trader’s computer analyzes news to execute trade, a lawyer’s computer can analyze documents to determine responsiveness and privilege. The challenge with predictive coding is the question of judicial defensibility. For more on predictive coding, see the October 2010 eDiscovery Institute Survey on Predictive Coding (PDF) and my colleague Foster Gibbon’s July 2010 Integreon blog post, The Future of Automated Document Review.

If the stewards of large sums of money trust computers to decide what to do with their money, why don’t courts and litigators trust computers to make decisions about documents?

Today, lawyers and courts typically presume that predictive coding is unreliable. For example, the January 2011 Inside Counsel reader poll found that 53% answered no to “Do you think computer review of documents for e-discovery purposes is as accurate as human review?” Perhaps the percent will change after respondents read, in the same issue, Computerized E-Discovery Document Review is Accurate and Defensible.)

Why do predictive coding proponents have the burden of proof to rebut the presumption that predictive coding is unreliable? And note that burden of proof is high.

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Source: Prism Legal
By: Ron Friedmann