This indicates that predictive coding continues to gain interest within the industry, considering that in the previous year's survey 55 % of respondents said they were considering the
use of predictive coding.
One can use various
forms of predictive coding to sort files for particular topics or for degrees of sensitivity: what's relevant, what's privileged, and so on.
For matters that involve a high volume of responsive documents, it may be more efficient to use the full
scope of predictive coding.
The
focus of predictive coding has centered on document review, where most people believe its adoption can have the greatest impact on reducing e-discovery costs.
Within the last two years, federal and state courts around the country have issued decisions endorsing the
use of predictive coding and accepting it as the norm.
In Hyles v. New York City, 2016 WL 4077114 (S.D.N.Y. Aug. 1, 2016), Judge Peck wrote on an issue that has become his trademark - the use
of predictive coding in e-discovery.
The focus was on the practical applications
of predictive coding for specific use cases, including for litigation, investigations and HSR second requests.
Our second segment was a panel led by Chris Dale, an industry leading eDiscovery consultant, who held an interactive discussion with the audience regarding the «acceptance
of predictive coding technology by the English courts».
The court's decision referenced U.S. Judge Peck's seminal Da Silva Moore v Publicis Groupe & MSL Group decision and the Irish High Court
endorsement of predictive coding in Irish Bank Resolution Corporation Ltd. v Quinn as persuasive, albeit non-binding, precedent.
FTI Technology is hosting a webcast tomorrow, entitled Predictive Discovery: Taking Predictive Coding Out of the «Black Box,» to discuss the practical implications and
application of predictive coding technologies.
We discussed analytics and other key trends, the challenges that legal teams are likely to face in 2013, and his predictions for the use
of predictive coding by practicing attorneys over the next twelve months.
In the U.S., practice technologies have boomed first in the e-discovery segment, where now even New York's elite law firms like Skadden are praising the
benefits of predictive coding, which uses machine learning to dramatically save time and money on attorney review of documents.
In another influential ruling in Rio Tinto Plc v. Vale S.A. (Southern District of New York, 2015), Judge Peck addressed the issue of transparency, stating that in general that he encourages parties to be transparent with their seed set development but also noted that there are other means to evaluate the
efficacy of predictive coding without agreeing on seed set parameters, including manual sampling of coded documents.
In February 2016, a London court supported the use
of predictive coding software in a legal disclosure process, which often involves lawyers receiving huge volumes of documents from those representing the other side in a case.
A lot
of predictive coding tools employ a relevancy score, which essentially rates the system's confidence on a document's relevance.
Likewise, for cases that involve a mix of hard copy documents and electronic documents, it is better to deal with the hard copy documents manually, and use some form
of predictive coding on the electronic documents to balance the manual work with a highly efficient approach for the digital portion.
Another signal pointing to momentum is the emergence
of predictive coding pundits and experts in Australia — which were all but non-existent a year ago.
Keyword search involves looking for specific words or phrases in a document collection and is «a good place to start, just to get your arms around some of the key issues and documents in a case,» says Matt Nelson, senior e-discovery counsel for Symantec in San Francisco and
author of Predictive Coding for Dummies.
While predictive coding is growing in acceptance, corporations indicate a preference to use trusted and proven service providers to handle the complexity and
defensibility of predictive coding.
As other judges followed suit, issuing their own opinions endorsing or approving predictive coding, the trend led law firm Gibson Dunn, in its annual e-discovery update, to declare 2012 «the
year of predictive coding.»
Ari: [29:16] Joe, on that point, it was interesting, when we were doing the research, that 88 percent of the people, both in - house counsels and law firm lawyers, wanted to learn more about measuring and understanding the
effectiveness of predictive coding.
[1:34] After we introduce today's presenters, we'll receive a brief
overview of predictive coding and then launch right into the survey methodology that was used to gather feedback from counsel on this topic.
This was not necessarily because it was a particularly novel situation or judgment; nor because it was the English court's first public
approval of predictive coding (although that must have been an important factor).
While it may be difficult to envisage a situation in which a disclosing party would not wish to avail itself of the potential benefits of using some form of TAR in suitable cases, if in such circumstances the court follows the overwhelming endorsement
of predictive coding given in Pyrrho and BCA Trading, it may well order a disclosing party to use predictive coding or other form of TAR irrespective of its wishes.
No sooner had we posted our recent blog about In re Actos, the case in which parties jointly determined document relevance as part
of a predictive coding protocol, when a trusted colleague asked this question: «I wonder... how most parties would feel about having the other side help determine wh...
I would argue that although having an opponent at the table is going to be a non-starter, the courts should be much more carefully examining whether they actually have a sufficient
understanding of predictive coding methodology and performance to make a proportionality ruling under Rule 26, since, as the Da Silva court noted, the court's ability to okay its use is rooted in part in the proportionality rule.
Offering a unique, visual approach to all
phases of the predictive coding process, Ringtail reduces the complexity associated with technology - assisted review and replaces it with an easy - to - use, intuitive workflow.
Some of the top practices touched on included preservation and collection, when to utilize service providers, tackling the uncertain
waters of predictive coding and leveraging data re-use.
The court kept returning to the theme of cost control and comparing the costs of manual review to Predictive Coding: «the costs
overall of a predictive coding review should be considerably lower.
Murphy also added the
rise of predictive coding, the impact of big data, visualization, and data clustering as other key issues being driven by increased in - house control of e-discovery to improve efficiency and reduce cost.
Even though
supporters of predictive coding will argue that many of those complexities are largely hidden from actual users of the technology, the promise of cheaper, more efficient e-discovery has yet to outweigh the fear of the unknown for many lawyers.