Predictive Coding: Reading the Judicial Tea Leaves

Technology-assisted document review, often called "predictive coding," is a hot topic among e-discovery practitioners these days. If properly used, these tools can result in substantial cost savings to parties dealing with large litigation data volumes. While there has been growing support for employing these technologies, using them requires careful thought and planning in the event that their use is challenged.

U.S. District Court Magistrate Judge Andrew Peck 's recent article, "Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?" is the latest judicial endorsement for predictive coding. Southern District of New York's Peck observes anecdotal reticence to its adoption because there is no express judicial decision supporting the technology. "Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval," wrote Peck.

He is not alone in his support of computer-assisted document review. Magistrate Judge John Facciola of the U.S. District Court for the District of Columbia encouraged its consideration in Disability Rights Council of Greater Wash. v. Wash. Metro. Transit Auth., 242 F.R.D. 139, 148 (D.D.C. 2007) ("I bring to the parties' attention recent scholarship that argues that concept searching, as opposed to keyword searching, is more efficient and more likely to produce the most comprehensive results.")

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Source: law.com
By: Mark Michels