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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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