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.

To read more visit www.clearwellsystems.com/e-discovery-blog/

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