ILNews

Attorneys discover predictive coding

Marilyn Odendahl
October 10, 2012
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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.•

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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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