Predictive coding, otherwise known as technology-assisted review, requires some major cooperation from both players, according to Emily Cobb and Annamaria Enenajor of Ropes & Gray. A recent case out of Nevada federal court has the e-discovery world “abuzz,” note the authors, with respect to implicit agreements and joint protocol associated with the technology. “Any practitioner considering predictive coding should fully consider the judge’s reasoning and the potential pitfalls associated with failure to consistently cooperate,” they warn.
The parties in the case had submitted a joint electronically stored information protocol that had been approved by the court. One of the parties, Progressive Casualty Insurance, then used the protocol to narrow 1.8 million documents down to 565,000. Contract attorneys were employed to weed through the hit documents. But at a certain point, Progressive determined this was too time-intensive and expensive, so it used predictive coding to sort through the remaining documents, explain the authors.
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