Lessons Learned From Predictive Coding in 'Da Silva Moore'

http://ow.ly/9CKmS

An article by Rebecca N. Shwayri posted on law.com on the LTN webpage.

This article looks at the recent case of  Monique Da Silva Moore v. Publicis Groupe & MSL Group, Case No. 11-cv-01279 (S.D.N.Y. Feb. 24, 2012) in which U.S. Magistrate Judge Andrew J. Peck requested a protocol for the use of predictive coding technology.  A link to the court order is provided in the article.

The article states, "Predictive coding has many benefits -- it is cost-effective and can cut review time down to a few weeks. In contrast, manual review and keyword searches can cost up to $8.50 per document. In document-intensive cases, the costs can add up to millions of dollars and take many months to complete. Even more troubling, keyword searches can leave up to 80 percent of relevant ESI undiscovered. Predictive coding reduces the number of documents that need to be manually reviewed, which results in a significant reduction of e-discovery costs.

Unlike other search methods that are used throughout the legal industry, like keyword searches, predictive coding uses mathematical formulas that are derived from document coding choices made by experts, who are usually senior attorneys working on the case. The expert codes random sets of documents taken from the corpus of e-discovery and specifies the relevancy of the documents. The computer learns how the lawyer codes the documents and develops a formula for "relevancy." The formula is then applied to the entire document collection to locate all relevant documents in the case."  Footnotes are provided providing additional source materials.

The article goes on to discuss the importance of this ruling, as well as the rulings likely impact on future litigation.  The article further states, "Several factors motivated the court to endorse the use of predictive coding. In addition to the agreement between the parties, the court highlighted the 3 million documents to be reviewed, the superiority of computer-assisted review to the "available alternatives," the need for cost-effectiveness and proportionality under Rule 26(b)(2)(c), and the transparent process proposed by the defendant, MSL.

Citing the importance of transparency as an aspect of cooperation in the discovery process, the court explained that MSL made the court's decision easier because it agreed to provide plaintiffs counsel with all non-privileged documents and the issue tags coded for each document. The court hoped that parties in the future would utilize such a transparent process.

Finally, the court noted that while predictive coding technology can locate ESI much faster and at a fraction of the cost compared to traditional technologies, the technology is not a case of "machine replacing humans.""