Friday, 9 November 2012
“This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding. I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go.

I would like you all to talk about a single discovery provider that could be used to warehouse both sides’ documents to be your single vendor. Pick one of these wonderful discovery super powers … If you cannot agree on a suitable discovery vendor, you can submit names to me and I will pick one for you.

… I would really encourage you all, instead of burning lots of hours with people reviewing, it seems to me this is the type of non-expedited case where we could all benefit from some new technology use.”

This is an even more aggressive stance than taken by the Judges in the Da Sliva Case and Global Aerospace where the Judges basically allowed clients to continue with their decision to use predictive coding even when there was opposition from the other side to doing so.

The impact

This US ruling represents the first prescriptive directive to use the spectrum of Technology Assisted Review that would be considered to be predictive coding.
Even though it is a US decision, it is clear that this is something that will have an impact on electronic discovery so it should come as a warning to legal practitioners who have not got themselves up to speed on methodologies, processes and tools in this space.