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August 17, 2012

Predictive Coding Watch: 'In Re: Actos'

Past_present_future400Predictive coding is being put to the test in court again — this time in the Western District of Louisiana. According to a post by Greg Buckles on the eDiscovery Journal, a case management order by Judge Rebecca Doherty frames a "Search Methodology Proof of Concept" to examine the viability of Equivio's predictive coding tool Relevance for review and production in the matter — the defendant's e-discovery provider Epiq Systems uses Equivio Relevance.

The case is In Re: Actos (Pioglitazone) Products Liability Litigation, a multidistrict litigation consolidating 11 civil actions for pretrial proceedings. The plaintiffs allege that Actos, a prescription drug for the treatment of diabetes type 2, increases users' risk of developing bladder cancer — a risk the plaintiffs allege defendants concealed and failed to adequately warn consumers about.

Both parties have agreed to collect email documents from four of 29 custodians named by defendant Takeda Pharmaceutical — added to a set of regulatory documents which have already been collected -- to build a "sample collection population." A control set will be built from a random sample of the "population" to train the Relevance system. Takeda's experts will be allowed to review the sample documents for privileged items to be removed or redacted. (See p.10-12 of the order.)

Once the control set has been created, the give-and-take between experts tagging documents as relevant and the machine learning from the process until its predictions acceptably mimic the reviewers decisions will be under way. With the order freely incorporating terminology from the Equivio playbook — such as a quality control procedure called "Test the Rest" — as Buckles observes, "the order starts to read like it could have been copied directly from a savvy provider's procedural manual."

The protocol provides for meet and confers throughout the process beginning with the selection of the four custodians and includes a post-predictive coding sampling meet and confer to "finalize the search methodology on a going forward basis."

Another judge is taking steps toward approving predictive coding — with safeguards in place for defendants' or plaintiffs' objections or difficulties encountered with the methodology. And if the class action at question is certified expect the document population to grow. Another test case?

Read the order here.

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