During discovery, litigators constantly struggle with how to sift through seemingly endless volumes of electronic information generated by a few strokes of the keyboard or clicks of a mouse. Predictive coding can help, but only if attorneys know how to use it.
When deciding whether to allow predictive coding, courts weigh benefits and burdens, but this is nothing new. Federal and state rules balance the burden and cost of producing information against its likely benefit and utility. Federal Rule of Civil Procedure 26(b)(2)(C) allows a court to limit discovery when "the burden or expense of the proposed discovery outweighs its likely benefit," in light of various considerations. Texas Rule of Civil Procedure 196.4 only requires production of "reasonably available" electronic and magnetic information that is retrievable through "reasonable efforts," and it provides for cost-shifting.
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