U.S. Magistrate Judge Peggy A. Leen turned down a request to order
use of predictive coding for 565,000 documents culled through keyword searches from an initial set of 1.8 million documents.
It has been widely publicised that the Pyrrho decision did not involve a
contested use of predictive coding: the parties had agreed upon its use and were seeking the court's approval.
In addition, Doug is heavily involved in negotiating protocols and validation methodology for defense -
side use of predictive coding for their ESI production — in other words, keeping them honest.
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.
Judge Peck has released well - known decisions on the topic, including Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012) and Rio Tinto PLC v. Vale S.A., 306 F.R.D. 125 (S.D.N.Y. 2015), and has been a vocal advocate of expanding
the use of predictive coding.
It was an informative gathering with lively roundtable discussions amongst peers on interesting e-discovery topics such as: judges ordering
the use of predictive coding, indexing data by concepts, the practicality of co-operation and disclosure of predictive coding to opposing counsel, whether it's possible to conduct privilege reviews using predictive coding and even securing executive buy - in for «spring cleaning» data remediation projects.
processes needed to supplement
the use of predictive coding as part of a defensible legal review workflow; and
Noting that the Tax Court had not previously addressed the issued of technology assisted review tools, Judge Buch concluded that
the use of predictive coding in this case would provide a «happy medium» that would address both parties» concerns.
The processes needed to supplement
the use of predictive coding as part of a defensible legal review workflow
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.
Two years ago, it was big news in the world of e-discovery when U.S. Magistrate Judge Andrew J. Peck issued the first judicial opinion expressly approving
the use of predictive coding.
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.
Ltd.Although the court acknowledged that
the use of predictive coding may not be a good fit for every case, it decided that — where it is possible and appropriate — this method can and should be used alongside manual review to fulfill discovery requests for electronically stored information.
In February 2016, the England and Wales High Court, Chancery Division approved
the use of predictive coding to satisfy discovery requests in Pyrrho Invs.
Adam Losey of Foley & Lardner in Lawyers: Objecting to Predictive Coding Is Futile highlights many court decisions around the country that have endorsed
the use of predictive coding.
[5] Ralph Losey, ibid., at 25, states that predictive coding (a variety of TAR) was slow to be used by U.S. lawyers until the decision of Magistrate Judge Andrew J. Peck on Feb. 24, 2012, in, Da Silva Moore v. Publicis Groupe 287 F.R.D. 182 (S.D.N.Y. 2012), approving
the use of predictive coding, listing justifications.
However,
the use of predictive coding and other advanced forms of technology assisted review (TAR) as primary tools in disclosure reviews remained at reasonably low levels coming into 2016.
While
the use of predictive coding is on the increase, Professors Remus and Levy highlight its limitations, including the fact that experienced lawyers must still classify the training sample of documents and train the system's parameters, meaning sizeable up - front costs that will only likely be justified in large cases.
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.
The first formal judicial endorsement of
the use of predictive coding in e-disclosure in the UK came from Master Matthews in his High Court ruling in the Pyrrho Investments v MWB Property Ltd case.
Litigators and eDiscovery providers alike have come out in force to welcome this week's landmark High Court ruling backing
the use of predictive coding — the first English court decision to approve the use of the software.
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.
The court evaluated 10 factors in favor of use, including proportionality, and did not list a single factor weighing against
the use of Predictive Coding.
Following the first English contested court order for
the use of predictive coding in the document review process, the litigation and corporate risk team at Berwin Leighton Paisner (BLP) have achieved a successful judgment at the end of a 12 - day High Court trial in the case of David Brown v BCA Trading Limited.
In particular, the Master acknowledged the contribution of Mr Edward Spencer of Taylor Wessing in taking the Court through the significant cost - savings that can be achieved by
the use of predictive coding.
It is to be hoped therefore, that we have seen the birth of a new standard order that will be used in all cases where directions for
the use of predictive coding are appropriate.»
This ruling comes two years after the same court authorized
the use of predictive coding in the case (Dynamo Holdings, Ltd. vs. Commissioner, 143 T.C.... Read More»
Although courts have endorsed
the use of predictive coding, the pool of cases involving the technology is still quite shallow.
In Pyrrho Investments Ltd v MWB Property Ltd & Ors [2016] EWHC 256 (Ch), the English High Court has recently approved
the use of predictive coding in the disclosure stage of High Court proceedings.
Back then he was the first judge to formally bless
the use of predictive coding — deeming it «judicially - approved in appropriate cases» — paving the way for widespread use and acceptance of technology assisted review («TAR»).
A detailed description of
the use of predictive coding devices is found in, Dynamo Holdings Ltd..
In the first case to approve
the use of predictive coding over a party's objection, a Virginia state court judge has signed off on the defense's computer - assisted review results.