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Papageorge: Predictive coding gaining support in courts

January 29, 2014
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Indiana Lawyer Focus

By John Papageorge

For attorneys handling larger litigation matters, electronically stored information – or ESI – has changed the landscape on how discovery is conducted. The days of manually reviewing boxes of client documents in cold warehouses have taken a backseat to wading through thousands – and in some cases millions – of emails and other electronic records.

Attorneys now are faced with the monumental task of collecting, reviewing and producing their own client’s electronic documents while also reviewing the opposing side’s electronic documents. This can lead to uncomfortable conversations with clients regarding the significant cost of the process.

Papageorge Papageorge

Supporters of predictive coding argue it makes the electronic discovery process less costly and less complicated. Predictive coding – a type of technology-assisted review or computer-assisted review – uses computers and algorithms to identify relevant and responsive documents in an automated manner. Unlike manual review, where the review is done by the most junior staff, predictive coding involves a more senior attorney or small team who review a “seed set” of documents for responsiveness.

The predictive coding system then applies the algorithms to identify properties of the seed set to automatically code the documents not reviewed by the attorneys. As the attorney team continues to code or identify additional responsive documents, the computer predicts the responsiveness of the universe of documents. Attorneys must review sample sets of documents coded by the computer and ultimately decide they have satisfied the requirements of Rule 26. In the end, the computer can identify thousands or even millions of responsive documents without the need for manual attorney review, saving clients thousands of dollars.

Predictive coding is gaining support in federal courts. In February 2012, United States Magistrate Judge Andrew J. Peck of United States District Court for the Southern District of New York, a leading authority on predictive coding, approved the use of predictive coding in Moore v. Publicis Groupe based on the following reasons: (1) the parties’ agreement, (2) the vast amount of electronically stored information (over three million documents), (3) the superiority of computer-assisted review to the available alternatives (i.e., linear manual review or keyword searches), (4) the need for cost effectiveness and proportionality under Rule 26, and (5) the transparent process proposed by one of the parties.

While Judge Peck cautioned that computer-assisted review is not appropriate in all cases, he did urge the bar to seriously consider using predictive coding in large-data-volume cases where it may save litigants a significant amount of legal fees for document review.

In April 2013, U.S. District Judge Robert L. Miller Jr. of the Northern District of Indiana issued a ruling in In re Biomet related to a discovery dispute involving keyword searches and predictive coding. Biomet produced millions of documents by initially using keyword searches to narrow the field of documents, followed by predictive coding to identify relevant documents to be produced. Biomet spent millions of dollars on electronic discovery. Plaintiffs objected to Biomet’s search method and argued that predictive coding should have been used from the outset. Plaintiffs wanted Biomet to start the discovery process over.

While Judge Miller stated that predictive coding from the outset might have unearthed additional documents, he ultimately rejected plaintiffs’ request to start over because Biomet, through the use of keyword searches and predictive coding, had satisfied the requirements of Rule 26 and the cost to start over outweighed any benefits of starting over. Judge Miller did tell plaintiffs that if they wanted documents produced via predictive coding only, they could pay the additional costs.

In May 2013, in Gordon v. Kaleida Health, an employment matter pending in the Western District of New York, the parties asked the court to resolve a discovery dispute involving approximately a quarter of a million electronic documents. For more than a year, the parties attempted, without success, to agree on how to achieve a cost-effective review of defendants’ voluminous emails using keyword search methodology. The court was dissatisfied with the lack of progress using keyword searches, and it pointed to predictive coding as another option.

After defendants decided to use predictive coding, the parties then fought over plaintiffs’ use of a conflicted consultant. Plaintiffs also took the position that the parties must negotiate a transparent protocol to guide the use of predictive coding software. Defendants, on the other hand, asserted that courts do not order parties in ESI discovery disputes to agree to specific protocols to facilitate computer-assisted review, based on the general rule that ESI production is within the sound discretion of the producing party. Because defendants ultimately agreed to meet and discuss the production using predictive coding, the court did not rule on the protocol dispute.

As caselaw develops on predictive coding, the issue of transparency related to predictive coding will be one to watch.

For larger litigation matters, predictive coding is here to stay, although the process is ever-changing. Many issues need to be resolved related to predictive coding, but cooperation and transparency will certainly take center stage. And as costs continue to escalate, courts will be faced with ongoing disputes over who pays for what.

Even after these disputes are resolved, parties must find the key documents that can be used to win the case. Maybe searching boxes of documents in a cold warehouse was not so bad after all.•

__________

John Papageorge – jpapgeorge@taftlaw.com – is a partner with Taft Stettinius & Hollister LLP, practicing complex civil litigation with significant experience handling issues related to electronic discovery. He serves as the firm’s e-discovery practice contact. The opinions expressed are those of the author.

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  1. wow is this a bunch of bs! i know the facts!

  2. MCBA .... time for a new release about your entire membership (or is it just the alter ego) being "saddened and disappointed" in the failure to lynch a police officer protecting himself in the line of duty. But this time against Eric Holder and the Federal Bureau of Investigation: "WASHINGTON — Justice Department lawyers will recommend that no civil rights charges be brought against the police officer who fatally shot an unarmed teenager in Ferguson, Mo., after an F.B.I. investigation found no evidence to support charges, law enforcement officials said Wednesday." http://www.nytimes.com/2015/01/22/us/justice-department-ferguson-civil-rights-darren-wilson.html?ref=us&_r=0

  3. Dr wail asfour lives 3 hours from the hospital,where if he gets an emergency at least he needs three hours,while even if he is on call he should be in a location where it gives him max 10 minutes to be beside the patient,they get paid double on their on call days ,where look how they handle it,so if the death of the patient occurs on weekend and these doctors still repeat same pattern such issue should be raised,they should be closer to the patient.on other hand if all the death occured on the absence of the Dr and the nurses handle it,the nurses should get trained how to function appearntly they not that good,if the Dr lives 3 hours far from the hospital on his call days he should sleep in the hospital

  4. It's a capital offense...one for you Latin scholars..

  5. I would like to suggest that you train those who search and help others, to be a Confidential Intermediary. Original Birth Certificates should not be handed out "willie nillie". There are many Birth Parents that have never told any of their families about, much less their Husband and Children about a baby born prior to their Mother's marriage. You can't go directly to her house, knock on her door and say I am the baby that you had years ago. This is what an Intermediary does as well as the search. They are appointed by by the Court after going through training and being Certified. If you would like, I can make a copy of my Certificate to give you an idea. you will need to attend classes and be certified then sworn in to follow the laws. I still am active and working on 5 cases at this time. Considering the fact that I am listed as a Senior Citizen, that's not at all bad. Being Certified is a protection for you as well as the Birth Mother. I have worked with many adoptees as well as the Birth Parents. They will also need understanding, guidance, and emotional help to deal with their own lost child and the love and fear that they have had locked up for all these years. If I could talk with those involved with the legal end, as well as those who do the searches and the Birth Mothers that lost their child, we JUST might find an answer that helps all of those involved. I hope that this will help you and others in the future. If you need to talk, I am listed with the Adoption Agencies here in Michigan. They can give you my phone number. My email address is as follows jatoz8@yahoo.com. Make sure that you use the word ADOPTION as the subject. Thank you for reading my message. Jeanette Abronowitz.

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