In the high-tech morass that is ediscovery, parties have tried various ways to do something about the disparity between cost and benefit.  An approach is to attempt to use new technology to fix – or at least ameliorate – the problems caused by the explosion in electronic information caused by existing technology.

One such proposed technological fix is called “predictive coding.”  Googling that phrase yields far more technical information than we could possibly provide (or maybe even understand), so in the nutshell of a very small nut, predictive coding takes advantage of artificial intelligence software that enables a computer to learn from its mistakes and adjust its processes accordingly.  The need for attorneys to review produced edocuments is a major aspect of excessive ediscovery cost.

Predictive coding can reduce that cost by using computers to extrapolate actual attorney review of a small subset (a “seed set”) of edocuments over the entire proposed production of documents.  The attorneys review the seed set – then the computer does a similar set of documents based upon the attorney coding.  The attorneys review that set and correct errors.  The computer does another set, having incorporated the attorney’s revisions.  That review process is repeated however many times, until everyone is satisfied the error rate (both false positive and false negative) is acceptable.  The vendors claim predictive coding ultimately makes fewer mistakes than review by actual human attorneys.  Take those financially interested claims with however many grains of salt you believe they deserve.

But until recently, no court anywhere had authorized the use of predictive coding in actual ediscovery.  Now that’s changed.  A presentation we heard at the PLAC spring meeting last week (by David Cohen of Reed Smith), mentioned four decisions in three cases where predictive coding had been judicially authorized as an ediscovery tool.

via Predictive Coding Gets A Chance | Dechert LLP – JDSupra.