The Judicial Studies Center held a conference on “Technology-Assisted Ediscovery Review” (predictive coding) on April 19 in Washington D.C. About 80 prominent jurists, government officials, senior lawyers, technical experts, and academics attended the invitation-only conference, the latest in the center’s “Bench-Bar-Academy Distinguished Lawyers’ Series,” which address emerging legal issues and develop consensus positions that will guide government policy-makers and decision-makers.
John Rabiej, director of the Judicial Studies Center, explained the conference was designed to explore the reasons for the reluctance of the bench and bar to use the new technology and to find ways to promote it. He pointed to a recent RAND study that deemed predictive coding and other computer-categorized review techniques a cost-effective option for review of the ever-increasing volume of digital records, and “the only reasonable way to handle large-scale production.”
The conference led off with a panel of experts explaining the new technology, moderated by Professor Gordon Cormack of the University of Waterloo, a recognized leader in the field. Lawyers using the technology described their experiences in the next two panels, moderated by Duke Professor Thomas Metzloff and Professor Edward Cooper of theUniversity of Michigan, the reporter to the Judicial Conference’s Advisory Committee on Civil Rules. A consensus developed that predictive coding can reduce ediscovery costs by 30 percent -40 percent (and perhaps as high as 70 percent) while maintaining quality at least as good as manual review.
The conference’s highlight was the judicial panel, moderated by Duke Professor Francis McGovern. Magistrate Judge Andrew Peck ’77, wrote the opinion in da Silva Moore v. Publicis Groupe, the first judicial opinion to recognize and approve the use of the technology. Judge Lee Rosenthal, the former Standing and Civil Rules Committee chairs, and Judge Jeremy Fogel, director of the Federal Judicial Center, agreed that judicial training in this area was critical. “But the lawyers must take the lead,” remarked Rosenthal of the U.S. District Court for the Southern District of Texas, “because judges are not familiar with predictive coding.”
Judge David Campbell of the U.S.District Court for the District of Arizona and Civil Rules Committee chair, reported on the recent committee action, which included proposed discovery-scope amendments to Civil Rule 26(b)(1), which would eliminate the “subject matter” good cause and “discovery reasonably calculated to lead to the discovery of admissible evidence” provisions. “The costs and benefits of ediscovery are also highlighted in the proposed amendments,” which incorporate the proportionality test into the definition of the scope of discovery, said Campbell,. The costs savings from predictive coding will continue to play an increasingly important role in addressing the discovery appropriate in an individual case, he said. Professor Dana Remus of the University of New Hampshire School of Law moderated the last panel on a lawyer’s ethical obligations to keep abreast of modern technological developments affecting litigation, including predictive coding.
Controlling ediscovery costs continues to occupy much of the Civil Rules Committee’s time and energy, noted Campbell. “The conference provided much useful information on this promising new technology,” he said, congratulating the center for bringing together the very best experts and leaders in this field.