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October 14, 2011

Reading the Judicial Tea Leaves

Tea_leaves128U.S. District Court Magistrate Judge Andrew Peck’s recent Law Technology News article, “Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?” endorsed technology-assisted document coding in electronic data discovery.

But other opinions suggest support for the process, also called "predictive coding." USDC Magistrate Judge John Facciola endorsed technology assisted document review in Disability Rights Council of Greater Wash. v. Wash. Metro. Transit Auth., 242 F.R.D. 139, 148 (D.D.C. 2007) as did U.S.D.C Magistrate Judge Paul Grimm in Victor Stanley, Inc. v. Creative Pipe, Inc., 250 F.R.D. 251 (D. Md. 2008). While these jurists have expressed support for using technology assisted document review, they each caution that parties must be prepared to defend the particular implementation of these tools and processes. 

In LTN's "Reading the Predictive Coding Judicial Tea Leaves,"  I discuss that these cases (and others) provide an approach for ensuring its defensibility. Facciola raised the prospect of a Federal Rule of Evidence 702/Daubert standard for resolving defensibility challenges; Grimm and Peck have expressed different views regarding defensibility proof.

Regardless of the precise defensibility approach required by a court, a party using technology assisted document review should be prepared to answer three questions in the event of a later challenge:

1. Who will explain credibly to the court or adversary the process and results?

2. What evidence is there to prove that technology assisted document review, in general, is reliable?

3. What evidence is or will be available to prove that the party followed a reliable process in this particular instance? 

The leading jurists in the e-discovery community support technology assisted document review and its acceptance is continuing to grow. The key to its defensibility is careful preparation in advance to ensure that the technology assisted document review tools and techniques employed survive close scrutiny if challenged.

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