Man Versus Machine Review: The Showdown between Hordes of Discovery Lawyers and a Computer-Utilizing Predictive-Coding Technology

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Nicholas Barry · 15 Vand. J. Ent. & Tech. L. 343

Abstract

The discovery process is regularly capturing millions of pages of documents. Electronic storage is making storing documents cheaper and easier. When litigation begins, however, sorting through this massive amount of electronically stored information is costly and time intensive. Keyword searches are a start to managing the growing amount of electronic documents, but the discovery process is still falling behind in efficiency. Predictive coding could change all that.

Predictive coding is capable of solving the time-intensive nature (and resultant growing cost) of processing discovery documents. Predictive coding is faster, cheaper, and more accurate than traditional linear document review, the current “gold standard” of document review. It requires a senior attorney to code a small amount of the overall document pool, then the predictive-coding technology kicks-in and codes the rest of the documents based on the senior attorney’s coding decisions. But the Federal Rules of Civil Procedure create obstacles for this new technology’s adoption.

This Note examines the path other discovery technologies have taken before courts and practitioners have ultimately accepted them. It is those paths that offer insight into the path predictive coding should take to become accepted. Eventually, something will need to be done to reign in the increasing cost of discovery. This Note argues predictive coding is the answer and provides a pathway for its acceptance under the Federal Rules of Civil Procedure.