Last spring, Judge James Chamblin, of the Twentieth Judicial Circuit Court of Virginia, approved defendants' e-discovery request to process electronically stored information using predictive coding methods, despite protests from plaintiffs in Global Aerospace v. Landow Aviation.
Chamblin's order related to e-discovery about a collapsed airplane hangar in the closely watched litigation.
Defense counsel at Schnader Harrison Segal & Lewis and Baxter, Baker, Sidle, Conn & Jones used OrcaTec's Document Decisioning Suite technology. Atlanta-based OrcaTec was scheduled to announce that the process is finished after plaintiffs counsel at Jones Day did not object to the results by a recent deadline, said multiple people close to the case.
No one affiliated with the case would comment January 16, including OrcaTec officials, plaintiffs counsel at Jones Day and the consultants who administered the software at JurInnov and Review Less. An email query to defense counsel was not answered.
Predictive coding is currently being used in other high-profile cases, most notably in the labor law case of Da Silva Moore v. Publicis Groupe SA. However, Global Aerospace is believed to be the first time a judge ordered the software's use over plaintiff objections.
Predictive coding, aka technology-assisted review, uses computer algorithms and human input to determine relevant electronically stored information. It is controversial because of industry debates about its effectiveness as compared to traditional all-human review, and about how to train the software and verify results.
Technology consultant David Lewis, who co-founded the U.S. government's TREC Legal Track and worked on other predictive coding cases, said the current Global Aerospace development is important but that it leaves room for other courts to add their own landmarks.
"This is an interesting and encouraging legal milestone in the acceptance of an already widely used technology," Lewis said, from Chicago. There's still the question of whether courts will ever require minimum statistically verified levels of effectiveness from predictive coding software, he observed.
"That would be a very big change in the law, but it seems like something that's going to be fought over at some point," Lewis said. "It is an interesting open legal question whether courts are going to ask for that."
E-discovery analyst David Horrigan, of 451 Research, expressed his surprise that Global Aerospace didn't head in a different direction and wondered aloud why plaintiffs counsel did not object to the results after initially objecting to the technology itself.
"It's disappointing this issue has apparently been resolved on [plaintiffs'] missed procedural deadline," he said. "Not unlike the predictive coding versus keyword search debate in Kleen Products [v. Packaging Corp. of America] being postponed, if this court deadline has really been missed, or if the plaintiffs chose to give up their challenge, we've lost an opportunity for a court ruling on predictive coding being decided on the merits."
Evan Koblentz is a reporter for Law Technology News, a Legal affiliate based in New York. •
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