When listening to various colleagues across this industry, it never fails to impress me to hear a new battle cry taken up in the realm of “Buzz Words”. The buzz words realm is a great one to be in, because frankly to the unsuspecting masses who don’t live and breathe the bits and bytes of electronic discovery, it gives them something to throw out around the office water cooler. I’d imagine this type of conversation happens fairly frequently:
“Hey do we have something called predictive coding?”
“I think so. Do you use it?”
“Pretty sure I do; it helps the attorneys get through their review faster I think.”
‘Oh, ok. What’s up with all those document binders? Is that production for court?”
“No, Attorney X still wants to review every page of this production because he doesn’t trust a computer to make the decisions.”
I think the point to take from this conversation – other than the fact that the legal industry is fast to adopt buzz terms though not necessarily the technology they represent – is to show that right now in the e-discovery industry, just as “near-dupe” was 4-5 years ago, “predictive coding” is the new darling child conceptual industry term. Since Judge Peck decided to open the floodgates about this technology (which is a good thing, mind you, because I’d rather have a tech-savvy judge than a dinosaur who still thinks yellow stickies is the ONLY way to go for doing a tagged review), you will absolutely see more and more ‘predictive coding’ or ‘technology assisted review’ or ‘machine learning’ offerings come to the table, as the market moves to answer the demands of the clients. Not so much the “needs”, but really it’s about the “wants”. And that’s okay, because that is what drives technology today, the business “wants and needs” of the clients.
So we know the term is out there, but is the technology really useful? Some would say absolutely, predictive coding cuts down on review time considerably. And those tech-savvy attorneys and paralegals who go whole hog on this technology usage will reap the benefits faster than those who are now just ramping up in this sector. As I travel around the country talking to various law firms, general counsel offices and other litigation support professionals, many have taken a position of just waiting to see where this will all fall into place. And I feel that’s the right position to take. There will always be early adopters, and to those companies I say thank you. You will be the guinea pigs to allow generation 1 software to go to generation 2 software pretty quickly. Technology assisted review sounds great on paper, but this is a process that still needs to be taken out behind the woodshed and beaten up a couple of times before it passes muster.
Now, to be sure, there are technology offerings that are very mature in the marketplace and have been tried and tested and come through with flying colors. The older buzz words of “collection, litigation hold, processing, review and production” have been around for a while now and are the staples of our industry. Some companies with these software solutions have consolidated, either by outright acquisition or merger, and have pushed ahead to take leadership positions with their software development and offerings practice. Before you buy into new technology, however, make sure the company you are buying it from has a vision for development, a vision for thought leadership and a reference database of happy satisfied customers. All of this is as important to the purchase of software to help your immediate needs. Software due diligence isn’t always about the function 1, function 2, function 3 of the software. You want to be sure that what you spend a good amount of money on will continue to be supported, as well as developed, to meet your litigation preparation needs.
At the end of the day, I predict that predictive coding will make more of an impact within break rooms and software development teams, than the near term actual usage of day to day activities by legal review teams. This technology, although offered by a small number of software companies for a number of years now, is still within its infancy. Like anything else in its infancy stage, there’s going to be a lot of teething pain. In the meantime, sit back and watch the hoopla surrounding this new darling child of the e-discovery world and watch as different business groups seem to coddle it more than others.