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By William A. Ruskin
In an earlier article, we discussed the significance of Magistrate Judge Andrew J. Peck's (SDNY) opinion in Da Silva Moore v. Publicis Groupe [enhanced version available to lexis.com subscribers], a highly publicized decision that approved of the use of computer-assisted review in place of "eyes on" document review.
Eric Seggebruch, the Regional Manager for eDiscovery at Recommind, Inc., testified before Judge Peck as an expert witness during a Da Silva Moore discovery hearing. Seggebruch has authored a helpful article titled "Electronic Discovery Utilizing Predictive Coding," that provides both technical and practical insights concerning predictive coding and its likely future in the legal marketplace.
At its heart, the ESI debate revolves around the discussion of the concept of proportionality. By way of example, Da Silva Moore is an employment discrimination case with a universe of some three million records subject to review for document production purposes. Proportionality asks the question whether the costs involved in identifying potentially relevant documents are justified by what is at issue in the underlying litigation.
Nearly one year after Judge Peck's decision in Da Silva Moore, the attorneys in that case reportedly continue to submit extensive (and presumably costly) briefs on ESI discovery issues. It is for this reason that the title of this article asks whether e-discovery will swallow the judiciary. Leaving aside the staggering costs to parties in litigation, the judicial resources necessary to address these issues may not be up to the task considering the time and intensity with which these battles are fought.
In evaluating the efficacy of predictive coding, Seggebruch tells us that there are two critical terms of art - "recall" and "precision." "Precision" asks how many documents one has to look at to find a relevant document. By way of example, if you review one hundred documents and find fifty relevant documents, you have achieved 50% precision. "Recall" may be the more important element of the two. If a search of one hundred documents brings back twenty-five relevant documents but twenty-five relevant documents are missed, then "recall" is only 50%. The rate of "recall" in any document production, whether predictive coding or "key word" searches are used, is critical to the integrity of the process.
With increased acceptance of predictive coding over time, it is likely that the "key word" paradigm, with which most lawyers and judges are familiar, will most likely change. According to Seggebruch, scientific studies have shown that "key word" document analyses are less efficacious than predictive coding. However, adversary counsel cannot complain about the level of "recall" obtained from the "key word" analysis performed if they had significant involvement in selecting the "key words" used in the search.
As an indication of how quickly the technology in this field is moving, in some cases, lawyers are now demanding ESI discovery "do overs." These lawyers argue that when their adversary performed their initial ESI production early in the case, they were admittedly adhering to the then prevailing best technology. However, since that initial production, new ESI techniques, such as predictive coding, have become available to provide potentially better results. To date, courts that have considered the "do over" petitions have either rejected them out of hand or required the requesting party to assume the costs.
For more cutting edge commentary on developing issues, visit Toxic Tort Litigation Blog by William A. Ruskin of Epstein Becker & Green.
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