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Court Praises Predictive Coding, Then Rejects It
Over the past few years, much ink has been spilled by judges, commentators, and e-discovery service providers opining on the merits and drawbacks of predictive coding. (As we noted in our article, “'Seed Set' Documents Should Not Be Discoverable,” 251 NYLJ 2 (Feb. 4, 2014), in which we provide background on predictive coding and review a number of judicial decisions on the topic, predictive coding, also often referred to as technology assisted review, is the use of computer-generated algorithms to supplement and extend the work of human reviewers in the discovery document review process.) Topics have included when predictive coding should and should not be used, which of the many competing predictive coding technologies and processes are best, whether predictive coding is more accurate than human review, and exactly how, if at all, predictive coding should be incorporated into discovery protocols.
In one of the best-known court battles over predictive coding, Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y. 2012), the court concluded that a judge could incorporate predictive coding into electronically stored information (ESI) protocols over the objection of one of the parties. But what happens when the parties have already agreed to an ESI protocol, which does not include predictive coding, and one party wants to change this protocol, over the objection of the other party, by incorporating predictive coding? Can one party unilaterally alter the method of discovery, or does the agreed-upon ESI protocol take precedence?
This is the question addressed by the court in Progressive Casualty Ins. v. Delaney, No. 2:11-cv-00678, 2014 WL 3563467 (D. Nev. July 18, 2014). In answering this question,'the court sheds light on the reasons why parties have been reluctant to accept predictive coding, the need for cooperation and transparency with one's adversary, the resulting risks of this cooperation, and highlights a key debate over best practices ' whether search terms can be used to first limit the universe of documents before predictive coding is employed.
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