2012 Prediction: Predictive Coding Arrives, Ready or Not

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E-Discovery and Predictive Coding

The field of legal technology, and e-discovery in particular, is interesting. There’s a sentiment that the “favorite technology” changes every three to five years. I think that’s mostly true. Then there’s the saying that when it comes to this industry, the faces never change. Besides a handful of wrinkles, I fear that I’m one of those faces. And then there’s the truism that the legal industry is painfully slow to change. Don’t hold your breath, but I think, on this count, 2012 will be different.

The overwhelming noise that you hear — from clients, from courts and from would-be solutions providers (other than staffing companies, of course) — is the consensus call for predictive coding.

Traditional Document Review

There is no argument that traditional document review is labor intensive and that the results are inconsistent. There is no argument that, for most, the use of keyword searching is an inexact science. And one cannot dispute that the cost and inefficiency of discovery often make litigating a case a daunting prospect at best. So, at long last, we’re going to have predictive coding. And now we ask the dog about to catch the bumper, “How do you think that’s going to taste?”

Predictive Coding

Amid the raucous cheerleading for predictive coding, we still must ask some fundamental questions:

  • Does this mean that litigants finally will be required to disclose their discovery practices?
  • How good does a predictive-coding tool have to be to be defensible? If manual review is not much better than the flip of a coin, which some commentators and studies have suggested (erroneously I believe), then is a predictive-coding tool that’s right more than half the time good enough?
  • We know that the leading legal commentators want sound statistical sampling. But what does this mean? Who is going to design the protocols? Who is going to execute them? Measure the results? Document the process?
  • Most importantly, will predictive coding actually save clients money? If a tool requires hundreds of senior-attorney training hours before spitting out large blobs of data that it “thinks” are relevant — which then require senior-attorney time to review before production — is this really saving money?

DiscoverReady Predictive Coding

DiscoverReady began addressing these topics in 2007, when we developed our i-Decision® automated review process. Since that time, we’ve refined our automated review solutions, working for some of the world’s largest companies, to provide the most comprehensive, transparent and defensible predictive coding process in the industry. Our process does not further burden senior counsel. And, most importantly, our clients don’t have to guess whether they are saving money.

So, welcome to 2012, predictive coding. We’ve been expecting you.

Author Details
Senior Vice President, Discovery Strategy & Data Privacy/Security
A recognized thought leader in e-discovery, Maureen collaborates with the company’s clients and operations teams to develop innovative information strategies for legal discovery, compliance, and sensitive data protection. She speaks and writes frequently on significant issues in e-discovery and information governance, and participates actively in the Sedona Conference Working Groups on Electronic Document Retention and Production and Data Privacy and Security. Prior to DiscoverReady, Maureen was a partner at Paul Hastings LLP, where she represented Fortune 100 companies in complex employment litigation matters.
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