Legal Acceptance of Predictive Coding: A Journey in Three Parts
There’s a certain trajectory for technology adoption. Early adopters, mainstream acceptance, laggards. But, slow or fast, adoption occurs. The law is the same way, in its own fashion. But the legal acceptance of predictive coding has had a path that’s unorthodox. From the legal perspective, predictive coding has gone through three cycles, not entirely as expected.
In cycle one, companies began using predictive coding. The efficiencies are compelling. Better end results in less time at a cost savings. An ability to better find and understand the facts embedded—sometimes hidden—in your documents. These things are crucial in today’s corporate world. Law firms were slower, but generally followed their clients into predictive coding, and soon saw the benefits first hand.
Other vendors—usually the first to adopt new technology—were laggards. They fought the adoption of predictive coding as long as they could, mainly because they didn’t have the capability to do it themselves. Eighteen months ago, the most frequent question I would get at conferences was “has there been a court case approving the use of predictive coding?” In the “ridicule it and it will go away” marketing approach, they were hoping to scare corporations and law firms away from the benefits corporations could achieve.
Then came Da Silva Moore and Global Aerospace. I’m an unabashed fan of the Global Aerospace decision, mainly because it takes the “e” out of eDiscovery. As has always been the case, each party is responsible for its own search. If a deficiency in the results can be articulated, a challenge to the search is warranted. If not, not. As important as Judge Peck’s decision in Da Silva Moore was, I think the truly historic decision will be the Global Aerospace case (all one paragraph of it).
During this period, other vendors stopped criticizing predictive coding and started marketing it—sometimes with the capability, sometimes without. Legal Tech 2012 was a predictive coding love-fest. One company sponsored a panel on predictive coding when just a year before, they had published an article stating that predictive coding wasn’t “ready for prime time.”
After waiting for the first decision approving the use of predictive coding, we went to stage two faster than anyone had thought possible: not whether you can use predictive coding, but whether you must use it. This was the argument in the Kleen Products case. The defendants had completed their review, and the plaintiffs’ argued that the review was defective because predictive coding wasn’t used. Eventually, the parties cooperated to end that dispute, but the argument had been made.
Personally, I think the Kleen Products argument will eventually be argued to decision, and it won’t be good for other technologies. As I said, the efficiencies are compelling.
We’re now in stage three: a court has sua sponte ordered the use predictive coding. And not just any court, the Delaware Chancellery Court, one of the most important corporate courts in the nation.
In the future, we’ll enter stage four: the decision by a state bar’s ethics watchdog that failure to use predictive coding is ethically questionable, if not unethical. After all, purposefully using a less-efficient, less accurate, more expensive option is problematic. I think that’s probably 18 months away. But given how fast we’ve gone through the first three states, stage four may come next week.