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New Software Provides Attorneys With a Lower Cost Method to Satisfy Client Needs
Posted in Litigation

As the capacity for storing data increases, so too does the cost of searching for relevant documents in the discovery process within that data. Recently, though, a new high tech tool called predictive coding has become available that can be used during the discovery process to narrow down the growing volumes of data in electronic discovery.

Predictive coding is essentially software that filters through electronically stored information and separates responsive documents from those that are non-responsive. However, human input is necessary at the front end of this process. Basically, an attorney will examine a seed set of documents and separate the relevant from the non-relevant. Then, using the attorney’s template, the algorithm within the predictive coding software is adjusted until the software can identify relevant and non-relevant data. Afterwards, an attorney can review either all the documents selected as responsive, or a sample of those documents, to test for quality and to guard against privileged information being released, before turning the information over to opposing counsel.

The technology has a relatively high upfront cost, and it is prudent to disclose its use to opposing counsel and the court to avoid challenges after the expense has already been incurred. However, Magistrate Judge Mark Dinsmore, of the U.S. District Court and Southern District of Indiana, has said that at this point he cannot imagine objecting to the use of predictive coding if both sides agreed to its use.

Some attorneys are hesitant about predictive coding, expressing concerns mainly centered on its accuracy. However, the use of predictive coding can dramatically reduce client costs through the discovery process. In fact, the use of predictive coding may allow more cases to proceed to trial. Reducing the cost of discovery may reduce the incentives to settle a close case; instead allowing it to proceed to a court where it can be judged on its merits. Ultimately, after careful analysis and discussion of both the benefits and drawbacks, an attorney can determine if the technology may be helpful in a particular case. If the technology is proven to be helpful in their cases, then predictive coding provides an opportunity for attorneys to provide necessary services to clients at a reduced cost.

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