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E-Discovery Insights – Clearwell Systems, Inc.

Predictive Coding Still Not Ready for Prime Time by Dean Gonsowskion November 22nd, 2010

A recent survey conducted by Barry Murphy of the E-Discovery Journal indicated that predictive coding, while a tantalizing new technology, isn’t ready for prime time yet. While certainly not the definitive word on the topic, the results appear directionally accurate with 71 % of the respondents saying that predictive coding was either not defensible or it was “too early to tell.” Barry ultimately wasn’t too stunned:“I suppose I shouldn’t be surprised; the legal industry is slow to change (and for good reason – it makes sense to proceed with caution when going into unchartered territory). … Yes, the surprise quickly wore off and I can understand why most believe that predictive coding is not defensible. It hasn’t seen the battle test of case law and there’s nothing like precedence to make the legal community feel more comfortable about certain practices.”

I’ve blogged (several times) on what I then called automated review technologies and concluded that ”an automated, review-less methodology will only make sense in a relatively rare set of circumstances” citing seven factors that need to align for this approach to make sense. I concur with Barry that predictive coding will inevitably become commonplace and that the adoption “will occur slowly.” So, what’s the holdup? Know More on e discovery companies. Anne Kershaw & Joseph Howie attempt to divine the reasons for the slow adoption in a recent article entitled “Will the legal community accept ‘predictive coding?” pointing out that the most mentioned reason, “was uncertainty or fear about whether judges will accept predictive coding.” Know More on digital investigations. So, what’s a forward thinking legal practitioner to do? First, it makes sense to carve out scenarios that may make the risk/reward calculation palatable. Next, it probably makes sense to not put all the eggs in one basket. In the Kershaw/Howie piece, they note the warts on the traditional review process and how that can be compared to predictive coding: “To be comfortable that predictive coding technology satisfies the legal standards for document review (reasonableness), counsel undeniably will need to understand how the results are tested and verified. However, litigants should take comfort in knowing that if the same statistical rigor were applied to traditional linear review, it would often fail.” Learn More on electronic document discovery.

While likely an accurate viewpoint, it seems cold comfort for a litigator to point out that the traditional (well accepted) discovery methodology is less reliable than a new (unproven) approach. To me the only way this comparative approach makes sense is if the producing party utilizes a belt and suspenders approach (i.e., utilizing both methodologies, perhaps with statistically sound sampling) to shore up any challenges that may seem compelling to a judge/magistrate who’s unfamiliar with the new technology. Going solo (with just a belt or suspenders) and relying solely on predictive coding, at this stage probably poses more risk than most litigators are willing to tolerate. Know More on litigation support software.

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Predictive Coding Still Not Ready for Prime Time  

A recent survey conducted by Barry Murphy of the E-Discovery Journal indicated that predictive coding, while a tantalizing new technology, i...

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