Let’s see whether it works: Discovery! Are you excited? How about this: Technology Assisted Review!! Nothing yet? How about: Predictive Coding!!! We gave you three exclamation points for that one. Are you pumped yet?
Yeah, neither are we. But we’re going to discuss these things anyway, in particular the way in which the court addressed them in a recent MDL decision in the hip implant litigation. In re Biomet M2A Magnum Hip Implant Prods. Liab. Litig., 2013 WL 1729682 (N.D. Ind. Apr. 18, 2013). Why? Because it’s important for anyone whose practice involves discovery of massive amounts of electronically stored information (ESI) – and mass torts certainly qualify – to understand the potential cost savings for clients presented by technology assisted searches and the legal viability of implementing them.
We’ve blogged about predictive coding before. Look here. In short, predictive coding software “learns” from the user’s selections or preferences and identifies – with greater accuracy as it learns – what the user wants to find. It’s used for many things on the Internet, and it’s now being used to identify electronic documents for production in litigation. The process involves an initial interaction between the software and reviewing attorneys, but at some point the software should be able to take it from there alone (for the most part). Here’s how the MDL court described the process that Biomet used to conduct it review of the 2.5 million documents it selected for review:
Under predictive coding, the software “learns” a user’s preferences or goals; as it learns, the software identifies with greater accuracy just which items the user wants, whether it be a song, a product, or a search topic. Biomet used a predictive coding service called Axelerate and eight contract attorneys to review a sampling of the 2 .5 million documents. After one round of “find more like this” interaction between the attorneys and the software, the contract attorneys (together with other software recommended by Biomet’s e-discovery vendor) reviewed documents for relevancy, confidentiality, and privilege.
Id. at *1. While it can reduce costs, things still aren’t cheap. The review cost Biomet $1.07 million, and Biomet projected that its ultimate costs would total $3.25 million. But a manual attorney review would have cost much more, and what plaintiffs were asking the court to order Biomet to do would have cost millions more.Continue Reading Plaintiffs Discover Risks of Refusing to Participate in Predictive Coding Discovery