While none of us possesses the clairvoyance of the famous soothsayer in “Julius Caesar,” here are 10 predictable predictions for the coming year:
1. Predictive coding case law will remain inconsistent. The judiciary has moved beyond the issue of whether predictive coding is an acceptable electronic data discovery review methodology. The question now is whether courts can provide consistent direction on issues such as disclosure, seed set development, validation methods and the like. The guidance on those issues, and others relating to the use of predictive coding, has been inconsistent and will likely remain so in 2015. Judicial opinions on predictive coding are typically based on specific fact patterns, which generally militates against broader application. This trend is best exemplified by the contrasting holdings from Bridgestone Americas v. IBM Corp., No. 3:13-1196 (M.D. Tenn. July 22, 2014),??and Progressive Cas. Ins. Co. v. Delaney, No. 2:11-cv-00678-LRH-PAL, 2014 WL 2112927 (D. Nev. May 20, 2014), addressing the specific time in litigation when parties must elect to use predictive coding. We’ll see more of this inconsistency in 2015, as new decisions are issued on various matters relating to the usage of predictive coding.
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