Technology has led to an explosion in the amount of electronically stored information maintained by corporations and individuals. Litigators and legal departments face the challenge of keeping the costs associated with discovery under control while avoiding potentially crippling sanctions for mishandling ESI. Current strategies to contain e-discovery costs include limiting the number of custodians and data sources processed; using technological tools such as keyword searches and concept searches to cull down the universe of potentially responsive data to be more manageable; and employing contract attorneys to review and code each document at a fraction of outside counsel’s standard rates. Recent developments in technology-assisted review, however, present an attractive option to comprehensive manual review, offering the promise of a more efficient, less-expensive process, and more accurate results.

Attorneys being pitched predictive coding[FOOTNOTE 1] tools by litigation vendors (and the pitches are flying fast and furious — “It’s easy!” “Cut your e-discovery costs by 90 percent!”) are hesitant to incorporate predictive coding technology into their e-discovery protocols. The most commonly cited reason for attorneys’ reluctance to use predictive coding technology is the uncertainty of judicial acceptance,[FOOTNOTE 2] as attorneys are loathe to recommend their clients invest in ESI predictive coding protocols and the related processing and consulting fees without clear judicial authority that such a review is reasonable and defensible.

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