Jury Still Out On Predictive Coding

The future of predictive coding as the go-to technology for e-discovery depends on two factors: technical viability and legal sanction. With regard to the latter, opinions vary. Da Silva Moore v. Publicis Groupe was the first case in which predictive coding was approved, by Judge Andrew Peck. Subsequently, in Bridgestone v. IBM and Progressive v. Delaney, the decision went the other way.

Technology assisted review (TAR) is sometimes referred to as predictive coding. However, TAR is a superset of all the technologies that assist document review, including predictive coding. Other TAR tools are more transparent, hence the “black box” concerns many lawyers have with regard to predictive coding.

Also, predictive coding technology is very expensive compared to several contemporary proven TAR technologies that can achieve most of the efficiency it claims. The legal community is hesitant about predictive coding’s transparency and defensibility.

Since predictive coding can be very useful, the decision to use it must depend on the nature of the case, and to some extent the parties and court involved. Predictive coding should be seen as one tool among many available to a litigator. Before deciding on any technology it is best to understand it, as well as the case in which it will be deployed. Ask your vendor about every aspect of the software, including cost. Legal practice evolves, and soon we will have good case law that will shape the future of predictive coding.