Many attorneys have now embraced predictive coding as a viable cure for discovery ills—a notable and significant change in attitude six years after Judge Peck’s ringing endorsement of the technology in Da Silva Moore. But a panacea it is not.
While predictive coding addresses many of the shortcomings of the traditional linear-review model, if not approached thoughtfully, it may fall short of addressing some of the challenges it purports to address. To address some of those pitfalls and achieve optimal efficiency, attorneys should consider combining predictive coding with another Technology Assisted Review (TAR) tool: email threading.
Predictive Coding: A Brief History
Predictive coding was born in direct response to the explosive discovery costs as email became increasingly commonplace twenty years ago. It has been a belated technological solution to a problem created by technology itself, promptly followed by risk-averse lawyers mulling its merits, still longing for the days when one could analogize a gigabyte of email to a mountain of boxes in exchange for nods of judicial sympathy.
Today the e-discovery marketplace may seem deluged with a growing list of competing technology platforms that relegate the linear review model back to the dawn of the century where it belongs. At a high level, the underpinnings of the predictive coding workflow are virtually the same: (i) attorneys review document samples to identify relevant documents; (ii) the predictive coding system uses the attorneys’ coding to identify additional potentially relevant documents; and (iii) human reviewers fine tune the system by confirming or overturning its categorization of relevant and not relevant documents.