For many years, there has been talk about the rise of predictive coding. Despite much discussion, many news stories and scholarly articles, predictive coding as part of document review has, thus far, not become an accepted practice in eDiscovery. A lack of understanding about the technology, risk aversion and concerns about being one of the test cases—both in court and in terms of results—have conspired to keep predictive coding from becoming the accepted practice in eDiscovery.
From a legal standpoint, changes to the Federal Rules of Civil Procedure (FRCP), which come into effect on December 1, 2015, place proportionality at the front and center of eDiscovery. In fact, as explained succinctly in Lexology, “Rule 26(b) (1) now makes proportionality considerations part of the definition of the scope of discovery and reinforces parties’ obligations to consider proportionality in making discovery requests, responses, and objections.” In trying to balance the amount of data and the many forms of data that are involved in even a smaller case, technology-assisted review tools, like predictive coding, become essential to finding the right proverbial needle in the right haystack with minimal expense.
While some might rely on the fact that proportionality rules have existed for years without being enforced and others might apply more first-year associates and litigation-support resources to solve the problem, legal teams that want to meet their clients’ needs and not incur the wrath of judges must come to grips with technology. To facilitate this shift in perspective on the role of technology-assisted review tools, The Chronicle of eDiscovery is pleased to bring you a six-part series on predictive coding and how to leverage it effectively in the eDiscovery process.
Authored by Meribeth Banaschik, Attorney at Law and Solicitor of England and Wales, at Noerr LLP, and Bruce Ellis Fein, Legal Director at Dagger Analytics, the Predictive Coding Primer will provide a practical guide to the fundamentals and defensibility of using predictive coding in various types of matters and jurisdictions. From a lexicon of terms, to a review of cases that have set precedent in terms of the rules of engagement for predictive coding to a comparison of predictive coding protocols, the series will lay the foundations for knowledgeable conversations within firms, with service providers and with clients.