Dec. 2011/Jan. 2012 / Features
Defending Enhanced Document Review Tools
Every major e-discovery vendor now offers its own twist on the “predictive coding” approach to categorizing electronic documents gathered for litigation review. Predictive coding applies decisions about a subset of the documents to the rest of the collection, without having reviewers examine each record.
When these tools are used for early case assessment or to make sense of the documents produced by the other side, they can be an excellent way to identify the most relevant documents as quickly as possible. But users of these tools generally do not understand how those commonalities are identified and why documents are excluded as irrelevant. Therefore using these tools to determine which documents are not going to be produced can be controversial. Indeed, vendors have identified one major obstacle to widespread adoption of these automated approaches: uncertainty about their judicial acceptance.
Under the current standards, whatever the method of review employed, it will be judged on whether it was reasonable. Federal Rule of Civil Procedure 26 specifically requires counsel to make a “reasonable inquiry” to satisfy its duties in responding to discovery requests. Reasonableness will be determined on a case-by-case basis, but both the technology and the review process must be appropriate to the tasks.
According to a recent court case, should a challenge arise, the selecting party should expect to support its selection with information from qualified and experienced people, “based on sufficient facts or data and using reliable principles or methodology.”
