ILNews

Papageorge: Predictive coding gaining support in courts

January 29, 2014
Keywords
Back to TopCommentsE-mailPrintBookmark and Share
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.

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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. State Farm is sad and filled with woe Edward Rust is no longer CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go All American Girl starred Margaret Cho The Miami Heat coach is nicknamed Spo I hate to paddle but don’t like to row Edward Rust is no longer CEO The Board said it was time for him to go The word souffler is French for blow I love the rain but dislike the snow Ten tosses for a nickel or a penny a throw State Farm is sad and filled with woe Edward Rust is no longer CEO Bambi’s mom was a fawn who became a doe You can’t line up if you don’t get in a row My car isn’t running, “Give me a tow” He had knowledge but wasn’t in the know The Board said it was time for him to go Plant a seed and water it to make it grow Phases of the tide are ebb and flow If you head isn’t hairy you don’t have a fro You can buff your bald head to make it glow State Farm is sad and filled with woe Edward Rust is no longer CEO I like Mike Tyson more than Riddick Bowe A mug of coffee is a cup of joe Call me brother, don’t call me bro When I sing scat I sound like Al Jarreau State Farm is sad and filled with woe The Board said it was time for him to go A former Tigers pitcher was Lerrin LaGrow Ursula Andress was a Bond girl in Dr. No Brian Benben is married to Madeline Stowe Betsy Ross couldn’t knit but she sure could sew He had knowledge but wasn’t in the know Edward Rust is no longer CEO Grand Funk toured with David Allan Coe I said to Shoeless Joe, “Say it ain’t so” Brandon Lee died during the filming of The Crow In 1992 I didn’t vote for Ross Perot State Farm is sad and filled with woe The Board said it was time for him to go A hare is fast and a tortoise is slow The overhead compartment is for luggage to stow Beware from above but look out below I’m gaining momentum, I’ve got big mo He had knowledge but wasn’t in the know Edward Rust is no longer CEO I’ve travelled far but have miles to go My insurance company thinks I’m their ho I’m not their friend but I am their foe Robin Hood had arrows, a quiver and a bow State Farm has a lame duck CEO He had knowledge, but wasn’t in the know The Board said it was time for him to go State Farm is sad and filled with woe

  2. The ADA acts as a tax upon all for the benefit of a few. And, most importantly, the many have no individual say in whether they pay the tax. Those with handicaps suffered in military service should get a pass, but those who are handicapped by accident or birth do NOT deserve that pass. The drivel about "equal access" is spurious because the handicapped HAVE equal access, they just can't effectively use it. That is their problem, not society's. The burden to remediate should be that of those who seek the benefit of some social, constructional, or dimensional change, NOT society generally. Everybody wants to socialize the costs and concentrate the benefits of government intrusion so that they benefit and largely avoid the costs. This simply maintains the constant push to the slop trough, and explains, in part, why the nation is 20 trillion dollars in the hole.

  3. Hey 2 psychs is never enough, since it is statistically unlikely that three will ever agree on anything! New study admits this pseudo science is about as scientifically valid as astrology ... done by via fortune cookie ....John Ioannidis, professor of health research and policy at Stanford University, said the study was impressive and that its results had been eagerly awaited by the scientific community. “Sadly, the picture it paints - a 64% failure rate even among papers published in the best journals in the field - is not very nice about the current status of psychological science in general, and for fields like social psychology it is just devastating,” he said. http://www.theguardian.com/science/2015/aug/27/study-delivers-bleak-verdict-on-validity-of-psychology-experiment-results

  4. Indianapolis Bar Association President John Trimble and I are on the same page, but it is a very large page with plenty of room for others to join us. As my final Res Gestae article will express in more detail in a few days, the Great Recession hastened a fundamental and permanent sea change for the global legal service profession. Every state bar is facing the same existential questions that thrust the medical profession into national healthcare reform debates. The bench, bar, and law schools must comprehensively reconsider how we define the practice of law and what it means to access justice. If the three principals of the legal service profession do not recast the vision of their roles and responsibilities soon, the marketplace will dictate those roles and responsibilities without regard for the public interests that the legal profession professes to serve.

  5. I have met some highly placed bureaucrats who vehemently disagree, Mr. Smith. This is not your father's time in America. Some ideas are just too politically incorrect too allow spoken, says those who watch over us for the good of their concept of order.

ADVERTISEMENT