Thursday, February 28, 2013

ACEDS Third Annual Conference Begins – Predictive Coding in the Spotlight

The third annual ACEDS conference kicked off today.  The conference, which takes place in South Florida brings together top industry experts and focuses on the delivery of eDiscovery related knowledge from both a legal and technology perspective to individuals who are eDiscovery novices, experts, and all those in between. 

The agenda for this year’s conference covers a wide array of topics, but, not surprisingly has a heavy focus on predictive coding; indeed predictive coding has been a hot topic in eDiscovery for at least the last year, and will continue to be the main talking point in the industry for this coming year as well.  If the conference did not address this topic it would be odd indeed.

I am attending the conference as a participant and as a sponsor/vendor for the company I work for.  I thought this would be a good opportunity to end my hiatus from blogging.  I hope to provide you analysis and summaries of some of the sessions, as well as my thoughts that are inspired by the sessions.
The first panel of the conference discussed predictive coding and provided a primer or introduction to its current state and what it is.

The panel noted aptly that there are currently about 7 cases that have written opinions addressing the topic, but that number will likely will be 70 by this time next year – right now you have can have a firm, detailed, grasp of all case law on the subject, but in the future that will not be the case.  This demonstrates how this is an emerging trend and technology that the courts are catching up to.  The cases thus far point in the direction of predictive coding becoming more important in the sense that if the technology is really better at identifying responsive material that current practices (with the corollary that that data will be produced) then it should be used – potential implications include sanctions if you do not use the technology because of the inference that you are not turning over relevant data if you are not using predictive coding – of course we are probably a long way from any such a finding or opinion, but it is a glimpse into judicial thinking and a future distant but growing closer every day.

Personally, I know that proponents will continue to push this technology, and rightly so, but concepts such as proportionality, accessibility, and fairness still override.  Meaning that due to cost or some other factor, predictive coding still may not be the best solution for any given matter.  A $50,000 matter is still only a $50,000 matter and extensive discovery costs will rarely be warranted in such a matter regardless of how effective a technology is or is not.  Likewise, a $100 million dollar matter with millions of documents comprised largely of spreadsheet type data is not a good use case for predictive coding despite the value and data volume, because at this point in time, the technology does not work well on that data type.  There are still many variables that need to be considered on a case by case basis when deciding if you will use predictive coding in a given instance; evaluate all of your options including, but not limited to, predictive coding technologies.

Importantly, as this technology develops, what companies need to start looking for are experts in predictive coding technology, its use, its limits, and when and how to use it efficiently and effectively.  Such experts may or may not exist at this time, but one thing that the past development of eDiscovery related technology has taught us is that today’s expert and today’s top performing tools, may be outdated and archaic next year.  The eDiscovery field, and particularly the applications that support it, are ever evolving at a pace far greater than many other areas of technology, and certainly much faster than virtually all other legal related technologies.  This makes it difficult for individuals and corporations, whose sole focus is not eDiscovery, to stay on the cutting edge and ensure they are meeting their needs (whether that be the best of the best technology or something that at a minimum adequately gets the job done, even if it not the best tool).  For such individuals and corporations, their eDiscovery and technology experts and vendors will be key drivers of their success (or lack thereof) and readiness to adopt the best technology. 

My advice to you is be aware of and understand the predictive coding concept, so that you can ensure your vendor has the requisite knowledge and is actively participating in the predictive coding discussion and is on the cutting edge of this trend, vetting and finding the best solutions for you and your case(s). 

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