It has long been recognized that an overwhelming majority of documents produced in complex litigations inevitably come from electronic sources. With today's infinite volumes of electronically stored information (ESI) complicating the discovery process, the legal world has been forced to adapt and find reliable, efficient and cost-effective methods to facilitate e-discovery. A growing number of attorneys have begun to utilize a relatively new technology known as a "predictive coding." This technology, through the use of sophisticated computer programming and algorithms, enables a computer to predict the relevance of a large volume of documents by learning from a human reviewer's classification of a small sample set. Andrew Peck, Search, Forward: Will Manual Document Review and Keyword Searches Be Replaced by Computer Assisted Coding, L. Tech. News, Oct. 2011.
Predictive coding has proven to increase efficiency accuracy during the document review process, and reduce litigation costs. Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, Rich. J. L. & Tech., Spring 2011, at 48. Despite these proven benefits, most lawyers have been reluctant to embrace computer assisted review because of the difficulty in defending complicated discovery protocols and underlying technology that leave attorneys and their clients exposed to harsh discovery sanctions. This unwillingness was further supported by the absence of judicial direction on the subject. Well, the wait is over. In a landmark judicial opinion, Magistrate Judge Andrew Peck of the Southern District of New York cleared a path for litigants across the country to adopt computer assisted document review protocols, such as predictive coding, to facilitate and expedite the costly and cumbersome e-discovery process in appropriate cases. Monique Da Silva Moore v. Publicis Groupe & MSL Group, No. 11 Civ. 1279, Dkt. No. 96 (Slip Op.) (S.D.N.Y. Feb. 24, 2012).
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