Actos provides additional insight into how parties and judges are approaching the use of predictive coding technology during discovery.
Central to the protocol is a detailed description of the predictive coding methodology the parties must utilize during discovery.
It is important to note that these factors guided courts in cases in which predictive coding was not at issue.
Less than a year ago, there were no legal cases on record specifically addressing the use of predictive coding technology.
For example, there are some companies buying licenses of Predictive Coding software for unlimited use and applying it to all matters.
Improper sampling could also impact the accuracy of common methods used to measure the performance of the predictive coding tool being used.
Predictive coding raises at least two important legal issues for counsel.
The technology is exciting for organizations attempting to manage skyrocketing legal budgets because predictive coding has the potential to save organizations millions in document review costs.
Perhaps more importantly in the grand scheme of things is the fact that this type of scenario is also bad for the future of predictive coding.
Some feel asking attorneys to add predictive coding tools to their technology tool belt is like asking them to fly jet airplanes instead of drive cars.
In Re: Actos (Pioglitazone) Products Liability Litigation recently surfaced as the newest case to fuel the continuing debate about the use of predictive coding technology in litigation.
Given the fact that predictive coding has only come into its own in the last several years, almost no federal (or state) case law addresses these important questions.
The shifting legal technology landscape explains why so many in the litigation community have turned to the courts for further guidance on the use of predictive coding technology.
However, the industry should demand that predictive coding providers include enough transparency into their tools so both parties can evaluate the soundness of the underlying statistical approach being applied.
Predictive coding technology happens to be an extremely promising technology tool that fits underneath the TAR umbrella, but it should not be viewed as a replacement for every TAR tool.
Predictive coding technology is beginning to gain broader acceptance within the legal community as an alternative approach to the drudgery of page-by-page manual document review, but some have expressed reluctance.
This scenario is obviously bad for the receiving party because they expected a higher level of performance at least 80% of all responsive documents from the predictive coding system used by the producing party.
Although the Order in Actos outlines the predictive coding protocol in detail, it does little to illuminate the complexity related to data sampling techniques that are the backbone of predictive coding technology.
While Actos represents another step in the evolution of predictive coding, the protocol explained in the Order does not provide enough transparency to ensure the overall integrity of the predictive coding process.
In the unstructured data world, especially text, the big trend is predictive coding or predictive analytics that identify high-risk communications, flag them for followup and use machine learning to train a data set.
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Not surprisingly, early generation predictive coding tools are far more complex and difficult to use than traditional legal technology tools such as keyword search, concept search, email threading, and data clustering to name a few.
The second fundamental question raised by predictive coding is whether counsel can still satisfy the mandate of Federal Rule of Evidence 502 with respect to inadvertent disclosures of material that is otherwise protected by attorney-client privilege.
Like Da Silva Moore, Actos even demands a high degree of cooperation between the parties that requires them to make joint decisions about the relevance or non-relevance of the documents used to train the predictive coding system.
For example, assume the parties to a case stipulate that the defendant will make a good faith effort to provide the plaintiff with at least 80% of the responsive documents contained within a collection of one million potentially responsive documents using a predictive coding tool.
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