Some say that predictive coding isn’t as useful to plaintiffs as it is to defendants. See, for example, this post on Linkedin.
In my view, what really matters is whether the litigant is producing or receiving the documents. Predictive coding is more useful to a producing party than to the receiving party. And, in a way, predictive coding is actually the opposite of post-production analysis.
Reviewing documents for early data assessment, early case assessment, or production has become a severe pain point for litigants. The exponential growth in our use of unstructured or semi-structured electronic documents in litigation is making it increasingly difficult to comply with ediscovery deadlines. If a party walks into a scheduling meeting without having a reasonable data map and a proposed plan, or if production isn’t done right, the hammer can come down hard.
In contrast, the receiver’s analysis of the documents produced is less constrained by time pressures, and the producing party isn’t too likely to complain that the receiver didn’t adequately review the documents.
Technology has responded by providing predictive coding solutions for litigation, mainly to facilitate production by either side, not post-production analysis. Predictive coding attempts to generalize from a set of human judgments about the discoverability of certain example documents.
Once the documents are produced, however, the question of whether they are discoverable is pretty much moot. In fact, in a way, what the receiving party does with the documents is the opposite of the predictive coding process. In post-production analysis, the litigant isn’t generalizing from examples to a larger set. Instead, it is analyzing the larger set of documents that it has received and trying to zoom in on those few documents that most clearly support its position.
If a particular monthly report to senior management contains a particular admission, that doesn’t mean that all monthly reports in the series contain the same admission. And if they do, it’s merely cumulative. The receiving party wants to find the best example from the pack, and that’s more a matter of nuance and judgment.
The state of the art in ediscovery is that we have technologies that can tell us which documents seem to address a particular subject. That’s the task for the producing party. That’s predictive coding. We don’t have technologies that can tell us which documents contain or support a particular statement. That’s the task for the receiving party. That’s Watson. So until we all have access to Watson, recipients need to generally rely on other search tools, their experience, their knowledge, and their intuition.