Like any new and disruptive technology, predictive coding (alternately referred to as technology assisted review or TAR) has proven both contagious and controversial since its introduction to the discovery process. On the one hand, TAR has found welcome recipients in clients, counsel and the courts, all of whom are seeking to expedite the search and review of electronic data. Lawyers and litigants have further gravitated toward TAR for its utility in helping locate key documents required to establish claims, defenses or simply key facts. These benefits transcend predictive coding’s initial perceived value of minimizing costly and tedious human review of massive document sets, helping spur further adoption for internal investigations and other non-discovery scenarios.
On the other hand, the introduction of TAR has been beset by controversy, with disagreements abounding as to what predictive coding actually is, when it should be applied and how it should be implemented into a review-for-production workflow. Though overwhelmingly supportive of its adoption, judicial opinions on TAR have nonetheless been based on specific fact patterns that make general application for practitioners difficult. Further, judicial declarations of a responding party’s discretion in choosing review methodologies have been tempered by imprecise or inconsistent judicial expectations of transparency and cooperation. This has led to uncertainty regarding the manner in which predictive coding may be defensibly employed, such as whether it must be sanctioned in case management orders and whether the documents used to train the TAR algorithm (generally referred to as “seed sets”) must be disclosed. Despite the widely acknowledged promise of predictive coding, this uncertainty has threatened to impede its use and proliferation.
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