First-Ever Court Decision on Predictive Coding Approves Using Software to Identify Responsive Documents

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On February 24, 2012, a New York court issued the first-ever reported decision in the United States on computer-assisted predictive coding, approving it as “an acceptable way to search for relevant ESI [electronically stored information] in appropriate cases.” See Moore v. Publicis Groupe, 11-civ-1279 (ALC) (AJP), 2012 U.S. Dist. LEXIS 23350 (S.D.N.Y. Feb. 24, 2012). Predictive coding, as explained below, is a method of using computer software to identify the relevant documents. Under the right circumstances, use of predictive coding can be a less expensive alternative to the traditional document-by-document review model. Because this is the first court decision to discuss predictive coding, it will likely influence how predictive coding is treated by other courts.

As anyone involved in litigation knows, the cost of discovery is often the single most expensive part of a case. The discovery process often involves millions of emails and other ESI that are then filtered using search terms, date restrictions, or other methods to reduce the number of documents for manual review. Even after this filtering process, discovery often involves teams of attorneys performing a document-by-document review of a substantial number of emails and other ESI for privilege and responsiveness. Not only is this process expensive, it can also lead to inconsistent results.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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