The Collision of the Courts and Predictive Coding: Defining Best Practices and Guidelines in Predictive Coding for Electronic Discovery

Article excerpt

TABLE OF CONTENTS

Introduction
I. The Evolution of the Current Search and Review Strategies
II. Technology Assisted Review: What it is and Why it Has Not Yet
    Been Universally Adopted
III. Technology Assisted Review's Changing Landscape: Recent Court
     Decisions
     A. Moore v. Publicis Groupe
     B. Global Aerospace v. Landow Aviation
     C. Kleen Products v. Packaging Corporation of America
     D. In re Actos (Pioglitazone) Products Liability Litigation
     E. EORHB, Inc. v. HOA Holdings, LLC
IV. Removing the Fear from Technology Assisted Review: Clarifying
    Best Practices and Guidelines
Conclusion

INTRODUCTION

Technology assisted review (TAR), also known as predictive coding or computer-assisted review, has been a subject of serious debate in electronic discovery ("e-discovery") for the past several years. For years, proponents of TAR have refrained from using the technology and instead were waiting for a judicial decision that would permit its use. (1) Fortunately, that decision has now arrived. In the first few months of 2012 the use of TAR has been directly addressed in three cases: Moore v. Publicis Groupe (2) and Global Aerospace v. Landow Aviation (3) permitted TAR's use. In Kleen Products v. Packaging Corporation of America, (4) the parties and the court issued a stipulation and order in August of 2012 that set forth the parameters for electronic discovery, but did not mandate the use of predictive coding by the defendant. (5) While proponents of TAR view Moore and Global Aerospace as wins for the use of TAR, the debate surrounding when and how it should be used is far from over. In July 2012, In re Actos (6) also reaffirmed the use of TAR. Most recently, in October 2012, Vice Chancellor J. Travis Laster in Delaware Chancery Court required the parties in EORHB, Inc. v. HOA Holdings, LLC to use TAR from the same vendor. (7)

TAR is an important next step in the development of e-discovery. The costs and inefficiencies resulting from the massive volumes of electronic data churned out by corporations on a daily basis have prohibited many businesses from truly litigating the substance of their disputes. Because discovery--and more importantly e-discovery--is a necessity of litigation in the United states, legal practitioners will need to rely on advances in technology to make discovery more manageable. TAR is one of these advances.

By using TAR, parties will be able to cull and review data more quickly and at a fraction of the cost of linear review. (8) This promises to ease the burdens e-discovery places on the judicial process by reducing the number of discovery disputes on the court's dockets and thus allowing litigation to be resolved more efficiently and economically. (9)

This article explores the recent precedent and commentary surrounding use of TAR. While TAR is technology that should be embraced by the legal community, determining when its use will be beneficial and how it should be carried out still needs further clarification. Determining when it should be used requires an evaluation of all aspects of a case: the costs, the parties, the amount and types of data, the time for completion, and the type of review anticipated. Even when its use would be beneficial, the standards for how to use TAR must be set forth clearly. By clarifying the standards and best practices that should be used, parties will be better able to evaluate their cases to determine when and how to use TAR and thus be able to take advantage of the benefits it offers.

I. THE EVOLUTION OF THE CURRENT SEARCH AND REVIEW STRATEGIES

searching for and reviewing documents has been a burdensome necessity of litigation for as long as modern day legal practice has been in existence. with corporations becoming larger and more complex, this burden has only increased. Data has become more varied and voluminous--beginning with paper and now largely electronically stored information (ESI). …