Over the past twelve months, at least five courts have dealt with the use of technology-assisted review (also known as “predictive coding”) as a means of identifying responsive documents requested during the discovery phase of criminal and civil litigation. Many have contended that these are watershed remarks, ushering in a period in which the costs of e-discovery begin to see a decline and are no longer the lynch pin that holds defendants and plaintiffs hostage to decisions that aren’t germane to the issues or facts in dispute. While technology-assisted review (TAR) or predictive coding (PC) will certainly have a material impact on costs, there are still some hurdles to widespread adoption that must be overcome:
- Opponents question the proposed approach and the soundness or applicability of the academic studies. In summary, many are fundamentally uncomfortable with the notion that in a technology-assisted review, not every document is actually reviewed by a person.
- Additionally, because the seed set — that includes both relevant and irrelevant documents — will generally be turned over to the receiving party, the producing party may be reluctant to supply documents that it would not have turned over in a manual review.
- Also, because vendors and courts lack consensus over the algorithms and work associated with technology in this arena, reluctance and reticence will persist until case law establishes a collective practice.
- Finally, costs of using TAR are, for many, still out of reach for medium and small cases. As we know, medium and small cases make up the majority of litigation in the United States.
Most of these barriers to widespread acceptance have but one solution….time. The final obstacle, however, “cost” can be overcome immediately by selecting a vendor who recognizes that the novelty of PC or TAR isn’t groundbreaking science commanding a premium rate, but rather the application of statistical methods and decision tree algorithms that academia have known about for the better part of a quarter century….or more!
If your discovery team has been hesitant to adopt, or even test TAR, then I invite you to read a recently published whitepaper that clearly articulates AccessData’s proprietary implementation and provides a very simple and concrete understanding of, not just the technology, but the workflow involved as well.