E-Discovery And The Rise of Predictive Coding

Predictive coding is the electronic coding, organization, and prioritization of entire sets of electronically stored information (“ESI”) according to their relation to discovery responsiveness, privilege, and designated issues before and during the legal discovery process. Lawyers control this process by specifying relevant criteria. Computers then expedite discovery, as discussed in greater detail below. As I have written elsewhere, the discovery process is becoming increasingly automated, scientific, and objective in nature, a fact that applies both to e-Discovery with the government (e.g., Department of Justice) and with other civil litigants. According to Robert Trenchard, a Partner in the New York office of Wilmer Hale, and Craig Carpenter, Vice President and General Counsel of Recommind, an end-to-end e-Discovery and predictive coding solution provider, predictive coding’s myriad benefits inure to those early adopters with a risk comfort level that embraces the relative uncertainly posed by the process vis-à-vis an attorney’s obligations to conduct a reasonable inquiry under Rule 26 of the Federal Rules of Civil Procedure and also to ensure attorney-client privilege in the event of inadvertent disclosure of privileged information under Federal Rule of Evidence 502.

From Towers of Bankers’ Boxes to Predictive Coding: A Brief History of Document Review

During the 15 months (1994-95) I spent as a legal assistant before law school, I remember well passing conference rooms with hundreds of bankers’ boxes, even more organized binders, tens of thousand of documents, privilege logs that became tomes, and dozens of contract attorneys. Who was to say at the time that the process was inefficient? It’s simply the way things were in the age of WordPerfect. After an interim phase best characterized by simple keyword searches and optical character recognition, e-Discovery has evolved to predictive coding. Why has this happened? Today’s realities are far different from what they were 15 years ago. Parties now have Terabytes of ESI. Document review is driven by substance and relevance-centric searches that leverage technology so as to require only a fraction of previous data collection.

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Source: blogs.forbes.com
By: Ben Kerschberg