Digital White Papers

ILTA WHITE PAPER: JUNE 2014 WWW.ILTANET.ORG 39 and defensible discovery process. As more vendors offer a predictive coding-type workflow, I often engage vendors to demo these tools for our case team and pose questions specific to the matter to understand how that vendor could support our case. Jeanette: As a project manager, I always try to advise my teams of tools and methodologies that will help us accomplish our goals for the review. I advise my teams on whether predictive coding technologies are a good option in that context. I believe predictive analytics allow me to offer additional recommendations and insight into data. It gives me different ways to approach the data through culling and thinking strategically about the review. Who or what drives the decision to use predictive coding? Jessica: The case team has the final say in how to approach its review. But as clients have become more tech-savvy, they are taking a more active role in this decision and often ask if or how we are considering different workflow options. Jeanette: It is always on our minds as litigation support project management teams because we have exposure to the tools and have seen the advantages. However, the final decision is made by the case team working on the matter in consultation with the client. What recent case law has influenced the use of predictive coding technologies? Jessica: As any associate doing legal research can tell you, Westlaw often does not give you the best example cases because the reported opinions are written when the discovery process has gone badly. There are so many quiet success stories that fly under the radar. Unfortunately, some public battles over the use of technology in Da Silva Moore v. Publicis Groupe et al. have turned some case teams off from considering predictive coding (which is not what the presiding judge intended by writing an opinion on this technology!). Jeanette: The Da Silva Moore and Kleen Products, LLC et al. v Packaging Corporation of America et al. decisions stand out for me. Both cases endorsed the use of TAR in their own way. However, several questions remain unsettled. The court in Kleen Products emphasized the need for cooperation and proportionality when commending "the lawyers and their clients for conducting their discovery obligations in a collaborative manner." Similarly, Judge Peck in Da Silva Moore encouraged parties using a TAR workflow to be transparent. While engaging in a meaningful dialogue provides tangible benefits, the nature and scope of information litigants might be asked to disclose can raise significant challenges considering these parties are on opposing sides trying to advocate and advance their own interests. PREDICTIVE CODING: REVOLUTIONIZING REVIEW OR STILL GAINING MOMENTUM? What makes TAR workflows attractive is not just the often-touted cost efficiencies but also the accuracy that can be achieved even in very large-scale reviews.

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