Litigation, especially for high profile companies means big money. In the age of big data, litigation and eDiscovery means big money too. So this Corporate Counsel article, “Change Is Coming: The Evolution of E-Discovery Economics,” caught my attention.

If you have ever done a Google keyword search, even if it is a custom search, you realize that keyword search is not efficient in returning narrow, accurate, relevant results. In a deluge of data, when time and costs matters, keyword searching is probably not the most efficient method of reviewing and producing documents in response to a discovery request. However, the article does make the valid point that until recently keyword search was the best we had available.

Now we enter the age of predictive coding. This technology opens an entirely new view of the massive landscape of structured and unstructured data.

Predictive coding is software that is trained by a user to predict which documents in a document set will be responsive and which will be non-responsive. Predictive coding goes by many names, including computer-assisted review and technology-assisted review.

Predictive coding aims to reduce the number of documents reviewed by ranking the documents according to a calculated level of responsiveness. Instead of looking at every email written by a custodian over a three-year time period, predictive coding uses a number of factors including keywords, writing style, subject matter of the writing, and even punctuation style to determine the chain of documents that are most relevant to the matter. These underlying programmable algorithms vary between software brands.

The discussion in the Corporate Counsel article is lengthy and worth reading carefully. Predictive coding is hot in the technology solutions landscape and Recommind was one of the first in the market space. However, as we all know, the world of law is a bit slow to embrace the newest technology. Someone else needs to test the water and find out if it is too hot, too cold, or maybe it is the Baby Bear solution to eDiscovery and offers the just right option. 

I think the massive amount of information that is being created, retained and therefore open for discovery needs more than predictive technology. I think active information management policies and procedures will be a key to the effective cost control of the evolving land of litigation.

Constance Ard, December 10, 2012