Predictive Coding Part II – A Look at the State of the Technology, the Impact on Review and Review Attorneys, Case Law, and What the Future Holds

PART II of IV: The Impact of Predictive Coding on Contract Review Attorneys

This is the second of four blogs on predictive coding that I will be posting.  This first entry focused on how the technology and use of predictive coding has changed and where exactly it stands in the industry today.  This second entry discusses the impact predictive coding has had on contract review attorneys.  The Third will cover case law on the topic. Finally, the fourth will provide some predictions about what the future holds for predictive coding.

I am writing these blog entries in part due to my participation in the upcoming ACEDS conference, where I will be speaking on a panel about Information Governance.  This four part blog series will appear in the conference material as a part of that panel.  If you are interested in the field of eDiscovery and pragmatic discussions about eDiscovery issues framed in the context of real life situations involving real people, I suggest you consider attending the conference, which will be held in Hollywood Beach, Florida, April 27-29.  Additionally, I believe the ACEDS eDiscovery certification is a worthwhile endeavor and certification.  If you would like more information about it, it can be found on the ACEDS website (www.aceds.org), or feel free to contact me as well.  

About two years ago, I succumbed to the notion that predictive coding was the future in the eDiscovery industry (which was actually fairly accurate) and that this potentially meant trouble for contract review attorneys and their jobs (which has not proven to be true thus far). Click here to read my article on the subject from two years ago.   I was not the only one to succumb to this, and even those outside the eDiscovery industry picked up on it, including the New York Times in a 2011 article by John Markoff, but I must now admit I was wrong and I was being too short sighted.

Two years later and two years wiser (I hope at least!) and document review and contract review attorneys are still common in the eDiscovery industry, and arguably have not been impacted much by predictive coding.  Why is this? In part because of when and if predictive coding is used: predictive coding, although much more accepted and utilized than it was two years ago, is still not universally used.  In my post last week, I briefly discussed some of the reasons for this (cost, trust, human time, sensitivity/importance of the material, objection from the opposing party).  Also in part because of how it is used.  In practice, predictive coding is often employed as a method to prioritize documents or to cull documents, but not as a complete review eliminator; common predictive coding workflows prioritize the responsive material to the front of the review but do not remove documents from the review population, or they may act to cull and remove some, but not all, of the data, leaving the remaining to still be reviewed. 

Despite this, there is no doubt that predictive coding is used and reasonably often.  Since the advent and adoption of predictive coding, the underlying framework of litigation in US courts has not changed and litigants and subpoena recipient’s need to produce material pursuant to discovery obligations continues, and hence the need to cull that data in a defensible and reasonable manner still exists.   Predictive coding technology has become an entrenched part in this and is viewed as a reliable and acceptable tool by the industry now more than ever.

So if the tool that was designed to reduce document review is viewed as viable and is being used, why isn’t document review being reduced?  The answer is that it is in fact being reduced, but not from what it was, rather it is being reduced from what it would be absent the technology; year over year numbers may not decrease, but if the technology were not being used, current numbers would be greater than last years and greater than what they are using predictive coding technology. 

The fact is that data continues to grow exponentially.  One of my clients who is very proactive in their approach to eDiscovery, who is sophisticated and knowledgeable, and who is using predictive coding, is still reviewing the same if not more data per custodian than they were in previous years, even when using predictive coding, because the amount of data they preserve, collect, and search continues to rapidly grow; the new technology, although effective, is only allowing them maintain the status quo, if that.  Without the technology, they would be faced with an unmanageable amount of data to review/produce (at least from a cost perspective).  As an aside, another way that people are tackling big data is via information governance, including how to store less, collect less (searching pre-collection is increasingly a buzz topic), getting data off legal holds etc.   Big data and information governance will be the topic that the panel I am on at the annual ACEDS conference at the end of April will speak to.

What this glut of data means for contract review attorneys, is that even when there is approval and budget and acceptance of predictive coding technology and its use, there is still a place and need for document review and review attorneys.  Moreover, for the document reviewers, the technology has not changed their role or needed skill set much either.  Predictive coding generally adds a step to the process that takes place prior to contract review attorney involvement, and thus, by the time a review attorney is brought in, the process and what they are doing is very much what it has been as of late.

I fully expect predictive coding to continue to push the envelope and gain more and more acceptance and traction in the industry, however I do not see that translating into the extinction of document review or review attorneys.  I continue to think the larger and more real threat to document review comes from things like law schools producing a greater supply of attorneys then the market demands, as well as the proposed changes to the FRCP, and the sentiment those changes embody; corporations are saying enough is enough we need to scale back eDiscovery and the FRCP are a way to do that.

I and others were not wrong that predictive coding would have an impact on the legal industry, we just underestimated how much data growth would negate much of that impact, and in turn, we overestimated the impact of predictive coding on contract review attorneys, who, as it turns out, are not going anywhere for the time being.