The NZ E-Discovery Blog  Facilitating proportionate and efficient e-discovery

Predictive Coding – facilitating a proportionate eDiscovery process

February 14th, 2014

Practicing law today has simply become too expensive to ‘eye ball’ every document. We need new practices to respond to these challenges to enable lawyers to get to the key documents quickly and cost effectively.

The rapid growth of electronic information is substantially increasing the cost of litigation and at the same time brings greater challenges for lawyers. These pressures will only escalate as the volumes and sources of electronic information continue to increase exponentially.

A manual document review is no longer possible – well it isn’t if we want to reduce the cost of litigation.  

Largely due to the ineffectiveness of methods like using keyword searches, new practices and tools have emerged to more accurately isolate the most important documents.

LawTalk has recently published an article of mine Predictive Coding – facilitating a more proportionate and cost effective discovery process (A link to the article can be found here). The article looked at how predictive coding is one option that has emerged to enable a more proportionate and cost effective discovery process by prioritising what lawyers look at.

The main themes of the article include –

  • The eDiscovery landscape is challenging traditional practices
  • A detailed explanation of what predictive coding is, outlining the stages involved in a typical predictive coding process.
  • Reinforcing the important role the lawyer (or subject matter expert), plays in the predictive coding process
  • Outlining when best to utilise options like predictive coding

These themes are reinforced by some of the points I made in the conclusion of the LawTalk article –

Todays’ increasing data volumes and subsequent costs require us to look at changing traditional practices if discovery is to be managed proportionately and cost effectively.

Predictive coding combines the expert knowledge of lawyers with the aide of technology to help facilitate a more proportionate approach to managing the discovery process.

By prioritising what lawyers look at, tools like predictive coding are options where technology can be applied to assist lawyers get to the key documents quicker, cheaper and more accurately than traditional practices.

Predictive coding can significantly accelerate the document review exercise (which is the largest cost of any discovery exercise) when compared to a more traditional linear review process that would usually involve reviewing ‘document by document’. It allows one lawyer (or subject matter expert), to review large volumes of documents in a short time period without having to read every single document. The method has been proven to produce improved accuracy and consistency at a much lower cost than more traditional practices.

Predictive coding/document prioritisation is expressly identified in the checklist of the High Court discovery rules as one of the methods parties should consider to carry out a more proportionate and reasonable discovery process.

Not a silver bullet

Predictive coding alone will not fully address all of the challenges of eDiscovery, neither will it be right for every matter.

When it comes to discovery there is no silver bullet, but there are certainly more effective practices to manage today’s challenges. It is still important to spend sufficient time planning a suitable strategy at an early stage to suit the requirements of the case. Predictive coding may well be one of those options considered.

A method that allows lawyers to get to the most important information earlier in the process must at the very least be considered as we all strive for a more proportionate and cost effective discovery process. 

If you are unsure about the best approach then it may be valuable to obtain independent advice to assist you find the most effective approach to suit your requirements.



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