eDiscovery Daily Blog
eDiscovery Trends: Forbes on the Rise of Predictive Coding
First the New York Times with an article about eDiscovery, now Forbes. Who’s next, The Wall Street Journal? 😉
Forbes published a blog post entitled E-Discovery And the Rise of Predictive Coding a few days ago. Written by Ben Kerschberg, Founder of Consero Group LLC, it gets into some legal issues and considerations regarding predictive coding that are interesting. For some background on predictive coding, check out our December blog posts, here and here.
First, the author provides a very brief history of document review, starting with bankers boxes and WordPerfect and “[a]fter an interim phase best characterized by simple keyword searches and optical character recognition”, it evolved to predictive coding. OK, that’s like saying that Gone with the Wind started with various suitors courting Scarlett O’Hara and after an interim phase best characterized by the Civil War, marriage and heartache, Rhett says to Scarlett, “Frankly, my dear, I don’t give a damn.” A bit oversimplification of how review has evolved.
Nonetheless, the article gets into a couple of important legal issues raised by predictive coding. They are:
- Satisfying Reasonable Search Requirements: Whether counsel can utilize the benefits of predictive coding and still meet legal obligations to conduct a reasonable search for responsive documents under the federal rules. The question is, what constitutes a reasonable search under Federal Rule 26(g)(1)(A), which requires that the responding attorney attest by signature that “with respect to a disclosure, it is complete and correct as of the time it is made”?
- Protecting Privilege: Whether counsel can protect attorney-client privilege for their client when a privileged document is inadvertently disclosed. Fed. Rule of. Evidence 502 provides that a court may order that a privilege or protection is not waived by disclosure if the disclosure was inadvertent and the holder of the privilege took reasonable steps to prevent disclosure. Again, what’s reasonable?
The author concludes that the use of predictive coding is reasonable, because it a) makes document review more efficient by providing only those documents to the reviewer that have been selected by the algorithm; b) makes it more likely that responsive documents will be produced, saving time and resources; and c) refines relevant subsets for review, which can then be validated statistically.
So, what do you think? Does predictive coding enable attorneys to satisfy these legal issues? Is it reasonable? Please share any comments you might have or if you’d like to know more about a particular topic.