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For years, litigators cited a lack of judicial guidance as their primary objection to using predictive coding technology. The objection is based on the notion that even though predictive coding technology promises to significantly reduce the time, cost, and error rate of pure human document review during discovery, few attorneys want to be the first to defend the use of technology they don’t understand. It is this fear of what some characterize as “black box technology” that has led many outside counsel to caution corporate clients to take a “wait and see” approach, in spite of continued pressure from those same clients to decrease document review costs. In 2012, the wait for judicial guidance ended abruptly when not one, but three new predictive coding cases surfaced: Da Silva Moore v. Publicis Groupe; Kleen Products, LLC v. Packaging Corporation of America; and Global Aerospace Inc., v. Landow Aviation, LLP. In Da Silva Moore, Judge Andrew Peck even approved the use of predictive coding technology in “appropriate cases,” leaving some to believe the courthouse doors had been thrown open to unbridled use of the technology. Somehow, within weeks of the decision, the wheels of the predictive coding freight train locked up, leaving many wondering whether or not these new predictive coding cases provided clarity or merely added more confusion. This article explains how predictive coding technology works, explores recent predictive coding cases, and provides a roadmap for understanding what must happen for predictive coding to regain momentum and become mainstream in the legal field.

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