Who Could Have Predicted This?

The term “predictive coding” has been the big buzz word in ediscovery of late. However, in practice, lawyers have been slow to embrace this technology and approach to the lawyer review phase. You will know from blogs past that the term “predictive coding” refers generally to a process (and accompanying technology) through which lawyers train a computer to recognize relevant records in a dataset in an effort to prioritize those presumptively relevant records for review. You will also note from blogs past that predictive coding is not a substitute replacement for manual review by lawyers for relevance and privilege, but rather, a tool to expedite the normally expensive review process in certain cases.

While this type of technology assisted review (“TAR”) can increase the speed and efficiency of a review and reduce costs (sometimes significantly), it is not commonly used (yet) in Canada. It is not that commonly used in the United States either, but apparently, that may change with some pressure from the bench.

In a recent decision out of the State of Delaware (EORBH Inc. et al vs. HOA Holdings), the Hon. J.Travis Laster, (on a motion for partial summary judgment and other relief), imposed on the parties a reverse onus with respect to the use of predictive coding. He suggested that the case in front of him was an “ideal non-expedited case in which the parties would benefit from using predictive coding.” He went on to say that if the parties did not want to use the approach, they would have to “show cause as to why this is not a case where predictive coding is the way to go.”

The judge further suggested that the parties select a single discovery provider/vendor (referenced in the decision as “one of these wonderful discovery super powers”) to host the data. If the parties were unable to agree on a vendor, the judge advised them to submit names to him and he would make the selection.

​While lawyers and the judiciary on both sides of the border continue to grapple with ediscovery and technology issues, this case certainly qualifies as being an outlier. However, it does emphasize the need for lawyers to be familiar with emerging technologies in the space to ensure they are current and ready to respond. Will we see a similar case in Canada at some point? While it seems unlikely at the present time, it is also likely that Americans did not predict this decision.