Integrating Predictive Coding: A Defensible Process

June 28, 2012

internet webThe topic of predictive coding has generated numerous heated debates relating to its appropriateness in the document review process. Monday, June 18th’s Wall Street Journal article on predictive coding marked the latest top tier news entry into the debate, highlighting the impact of predictive coding on document intensive litigation. As Managing Director of Pangea3 and the Thomson Reuters Corporate Counsel Litigation Sector, I briefly discussed the rising consideration of predictive coding in clients’ legal matters. I wanted to take this opportunity to briefly expand upon what I stated in the article and maybe add on a few thoughts.

The article introduces predictive coding through its use in a series of Landow Aviation lawsuits, where Loudon County Circuit Judge James H. Chamblin has permitted millions of electronic documents to be sifted through by the technology in the initial litigation stage. The discovery phase accounts for a large portion of the rising costs of litigation and the WSJ points out that with industry experts estimating the cost of traditional review at over $1 per document, predictive coding provides a great opportunity for cost reduction in document intensive litigations, such as the Landow Aviation lawsuits.

The Wall Street Journal captures the growing sentiment of support for the technology both inside and outside of the courtroom, and for incorporating it into the discovery process. However, it also captures the general anxiety over the extent to which companies should rely on a relatively new technology, and how it works with human review.

In the first judicial ruling on this technology, Moore v. Publicis Group, Magistrate Judge Peck issued an opinion that highlighted the power of the technology in helping to secure greater efficiencies in document review—but only when integrated into a larger defensible process. I would go further in saying that creating that process, which will inevitably include human review and auditing, is the best way to make the most of the often sizeable investment one makes in the technology. It is important to remember that predictive coding is one of many tools available to litigants to tackle the growing amount of ESI cost efficiently, and to maintain quality and minimal error. By starting with the process instead of the technology, one can make sure to use the most efficient tool for the appropriate circumstance, and use it with some peace of mind about its defensibility. This is particularly important during this time when, although there is a trend allowing use, case precedent for predictive coding use is far from settled.

Articles like the one in the Wall Street Journal, are building momentum for mainstream understanding and acceptance for this ground breaking technology. As I stated in the article, we embrace predictive coding and anything that helps our clients ensure a defensible discovery process while helping them with fast rising document review costs.

For additional information on CAR/PC and what to consider when evaluating this technology, see this article on technology-assisted document review by Pangea3 Assistant Vice President of Litigation Solutions, Pradeep Victor.