ILNews

Attorneys discover predictive coding

Marilyn Odendahl
October 10, 2012
Back to TopCommentsE-mailPrintBookmark and Share
Indiana Lawyer Focus

In the world of searching for relevant documents in the recesses of email inboxes and hard drives, a new high-tech tool has appeared that, despite causing trepidation among some attorneys, will likely become commonly used during the discovery process to tame the growing volumes of data.

Predictive coding is the coming wave in electronic discovery. The software filters through electronically stored information and separates the responsive documents from the non-responsive ones. Although the process is not completely without human input, it is touted as reducing the amount of time and money involved in an e-discovery process because fewer lawyers are needed to sift through the reams of data.

rebecca biller Biller

This technology is being used or seriously considered in cases in other states, and Indiana attorneys anticipate it will be enlisted here very soon. The present concerns over predictive coding’s reliability may give way to pragmatism since electronic discovery is increasingly becoming part of litigation, and the massive amount of documents now stored on computers has begun to outweigh many law firms’ ability to do reviews by hand.

Indianapolis attorneys Becky Biller and John Papageorge believe predictive coding will appear in litigation in Indiana either this year or next. In fact, Papageorge, partner at Taft Stettinius & Hollister LLP, said his firm has a client “on the cusp” of using the technology.

As they await the arrival of predictive coding, Biller and Papageorge reflect the differing attitudes toward the software.

Biller, associate at Krieg DeVault LLP and co-chair of the firm’s electronic discovery and data management group, said she is excited to use the technology. In litigation with a high dollar value along with a large number of documents to review, the use of predictive coding will make sense.

john papageorge Papageorge

Papageorge, while not opposed to using the technology, admitted it makes him uneasy because clients, attorneys and judges will be relying on computers to do the work and hoping the algorithms are right.

Even so, it will likely have to be used, he said, because of the “staggering sums of money” that clients will have to pay if traditional methods of discovery are used to review the huge number of documents that are often part of e-discovery. As an example, Papageorge estimated that five to seven lawyers doing discovery all day, every day, for one or two weeks would be able to examine about 10,000 to 12,000 documents which compares to electronically stored information that can easily surpass a million, five million or more documents.

Not hocus pocus

Predictive coding is not about computers making all the decisions and taking jobs from lawyers, said Juliet Hanna and Caragh Landry, executives at Integreon, an international company that provides legal, research and business support to law firms, in-house legal departments and corporations. Rather, it is based on the pre-existing technology of clustering and concept searches to prioritize the documents so the attorney can better review them.

phillip fowler Fowler

“You have to have people involved in this,” Hanna, vice president of legal discovery services, said. “I think sometimes people get really scared because computers are taking over the world. … It’s not succeeding control to a computer. It’s using technology to work better.”

They compared the work of predictive coding to that of a paralegal. Just like a paralegal would take a box of documents into a conference room, separate the pieces of paper into different piles, and place a Post-it note labeling each stack, predictive coding categorizes electronic documents and, thereby, enhances an attorney’s ability to review the responsive information.

Both Papageorge and Phillip Fowler, partner at Bingham Greenebaum Doll LLP, outlined how predictive coding sorts the documents. Basically, an attorney will examine a seed set of documents and separate the relevant from the non-relevant. Then using this template, the algorithm is adjusted until the software can similarly identify relevant and non-relevant data.

Afterward, the attorney can review all documents that the computer selected as responsive or review a sample of those documents to test for quality – and to guard against privileged information being released – before turning the information over to opposing counsel.

“I see it as an opportunity for us to provide services we need to provide to our clients but at a reduced cost,” Fowler said.

juliet hanna Hanna

He also speculated that predictive coding could have a significant impact on litigation by sending more cases into the courtroom. Currently, clients often decide to settle because both sides get tired of paying the fees that come with protracted discoveries. With this technology’s ability to pare down a large volume of documents into a more manageable size, thus cutting the time and expense of review, more disputes may go to court where they will be judged on their merits.

Disclosing

A much publicized court opinion regarding predictive coding came in February from the U.S. District Court for the Southern District of New York. U.S. Magistrate Judge Andrew Peck approved the use of predictive coding in Monique Da Silva Moore, et al. v Publicis Groupe & MSL Group, 11 Civ. 1279 (ALC) (AJP), concluding that computer-assisted review is an available tool and should be considered in large data cases where its use might save money.

U.S. Magistrate Judge Mark J. Dinsmore of the U.S. District Court for the Southern District of Indiana has already had a case come before him where predictive coding was considered but ultimately not used because many of the electronic documents in the case were PDFs, and the software was not as successful in culling the responsive documents.

Dinsmore shied away from describing himself as “comfortable” with the technology but said he is “open-minded about it.” At this point, he said he could not imagine objecting to predictive coding if both sides agreed to its use.

caragh landry Landry

Landry and Hanna argued that attorneys do not have to disclose when they are employing predictive coding in the e-discovery process. The technology underlying the software has been around for years, and other methods of reviewing documents, like keyword searches, are not often disclosed to either the opposing counsel or to the court.

However, Indiana attorneys advised against keeping predictive coding a secret. Mostly because of the cost of the technology, which runs into six figures, disclosure is prudent to avoid having the other side raise challenges after the expense has been incurred. In addition, getting agreement early may limit objections later.

Biller views the federal courts as the best place for using predictive coding since the meet and confer requirement gives attorneys a forum to discuss and agree on the e-discovery process. Getting prior agreement would enhance the discovery process, she said, and eliminate disputes.

“It would be a real tragedy to invest in predictive coding only to have the other party in court challenge it and say, ‘You can’t use it’ because it is expensive,” Biller said.•

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

ADVERTISEMENT