Strategic eDiscovery – Predictive Coding
I often get asked what I mean when I speak about strategic eDiscovery.
There is a common perception that eDiscovery and the technologies that drive it are simply used to satisfy a legal obligation – a box-ticking exercise. However, this interpretation could not be further from the truth. When technology is leveraged strategically, advantages are created where there once were none. Predictive coding is just one such example.
It is easy to imagine a law firm “ABC Ltd” unable to reach an agreement with opposing counsel on search terms. A situation like this would threaten to derail the data interrogation workflow before it has even begun. What should be a simple task of agreeing on specific terms could quickly devolve into a contentious situation resulting in wasted time and resources.
More advanced technology could obviate this deliberation over terminology. Predictive coding could be the strategic approach necessary to get the law firm back on track.
This would begin with the iterative process of training the system to think like a subject matter expert (SME). A back-and-forth exercise of Q&A where thematic representations of data found across the entire universe would be presented to the SME. After several rounds between the SME and the programme as regards what is relevant and what is not, a level of stability would be achieved, with a goal of 97.5% rate of agreement. This precise understanding can then be deployed to the rest of the data with a high level of confidence.
Who needs search terms to get things started? By employing a predictive coding model, our hypothetical law firm ABC Ltd would be able to begin their analysis immediately rather than waiting on a consensus over terminology. By utilising technology-assisted review such as predictive coding a law firm is again placed back in the driver’s seat without needing the input of opposing counsel.
Yet predictive coding is not new. For several years now, its application to all manner of different issues is well established and accepted. All too often, however, lawyers opt for the standard search term-based approach. This is not sustainable. If data are growing exponentially, so too must the results if we are applying the same methodology to reduce expansive data volumes.
Is next-generation technology the silver bullet? No, but failing to apply all the various tools in the eDiscovery toolbox places one at a disadvantage. eDiscovery advisors and consultants think creatively and strategically making the impossible ascertainable. We as lawyers will always need to get to the evidence required to prove our case but how we go about finding this evidence is where a strategic approach presents a clear advantage.