With the costs of e-discovery placing increasing financial burdens on litigants, attorneys have attempted to control e-discovery costs by significantly reducing the quantity of electronically stored information (ESI) collected and manually reviewed before production. One of the ways of reducing ESI is by agreeing to an e-discovery protocol setting forth limitations and parameters for ESI productions, including limiting the number of custodians, removing duplicates, incorporating claw-back procedures for privileged documents inadvertently produced and using “keywords.” Among other things, an e-discovery protocol can help narrow the scope and reduce the amount of data needed to be collected and reviewed. However, even after the amount of ESI has been narrowed, it still must be manually reviewed and coded by attorneys or paralegals before being produced, often taking hundreds, if not thousands, of hours and at great expense.

What if senior attorneys could review a small subset of the ESI collected and use that minimal review to train a computer to identify and code responsive documents for production? Would a court permit such a protocol? Could computer-assisted coding, also referred to as predictive coding, be as accurate as attorney or paralegal review? Would the computer-assisted coding save money? At least one judge believes the answer to these questions is “yes” and has issued a decision advocating for parties to use computer-assisted coding in appropriate cases.

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