Strong Endorsement of Predictive Coding From Chancery Court
Predictive coding has become increasingly commonplace in electronic litigation proceedings. Many have worried that the technology is simply an unnecessary add-on to an already complex eDiscovery landscape, and that it will only create false positives. However, this couldn’t be further from the truth, as predictive coding software has been refined almost perpetually since its inception.
With the right predictive coding software, litigation solution providers can actually improve the efficiency of the overall process. The real question is who is your litigation solutions provider? As a result of extreme competition, the software only continues to get better.
Growing acceptance in the courtroom;
Bracewell & Giuliani recently published a report explaining that predictive coding is seeing increasing support from judges during litigation proceedings. Citing the decision made during EOHB, Inc. et al. v. HOL Holdings, LLC this past October in the Delaware Chancery Court, one of the officials demanded both parties use predictive coding software.
Now, while other issues have nearly mirrored this decision, especially because Vice Chancellor J. Travis Laster recommended the two parties use the same predictive coding software provider, this case was different. In this case Chancellor Laster did not suggest a specific service provider but endorsed the overall predictive coding process instead, which seems to be a really good sign.
Bracewell & Giuliani noted that this is the first time a high-ranking official in the Delaware Chancery Court, which is relatively influential, has endorsed the use of predictive coding software. Finally, the firm explained that the Vice Chancellor’s decision was likely the result of the number of documents involved in the indemnification claim, as predictive coding is most useful when the information volume to be reviewed is massive.
Things to avoid;
Main Justice recently published a blog by Mary Jacoby regarding cost shifting in the eDiscovery industry. According to the author, production of documents and procurement of software to adequate conduct the litigation services are the clearest costs. Jacoby interviewed a litigation assistant at a major corporate regarding the dangers of eDiscovery costs.
The assistant explained that in extreme examples, the costs can be in the millions of dollars while the outcome leads to no substantial case. Though a firm would be quite reluctant to pay such a bill for literally no outcome, they still have to. This also raises questions regarding best practices for legal costs placed on the bill for the losing party, that is, if there is no winner or loser.
Until the industry is more transparent, firms should be looking for litigation solutions providers that are vendor neutral and use the most advanced and agile predictive coding software, while also involved with day-to-day project planning. Collaboration between the service provider, company and law firm is key to ensure the integrity of the relationship, so always choose a solutions provider that commits to building a strong rapport.
Sources:
https://www.jdsupra.com/legalnews/chancery-court-endorses-predictive-codin-81938/
https://www.mainjustice.com/2012/11/08/who-pays-for-e-discovery-podcast-on-developments-in-cost-shifting/”