In the 1999 Academy Award-winning movie, Being John Malkovich, there’s a scene where the eponymous character is transported into his own body via a portal and everyone around him looks exactly like him. All the characters can say is “Malkovich” as if this single word conveys everything to everyone.
In the eDiscovery world it seems lately like predictive coding has been Malkovich-ized, in the sense that it’s the start and end of every discussion. We here at eDiscovery 2.0 are similarly unable to break free of predictive coding’s gravitational pull – but we’ve attempted to give the use of this emerging technology some context, in the form of a top ten list.
So, without further ado, here are the top ten important items to consider with predictive coding and eDiscovery generally…
1. Perfection Is Not Required in eDiscovery
While not addressing predictive coding per se, it’s important to understand the litmus test for eDiscovery efforts. Regardless of the tools or techniques utilized to respond to document requests in electronic discovery, perfection is not required. The goal should be to create a reasonable and repeatable process to establish defensibility in the event you face challenges by the court or an opposing party. Make sure the predictive coding application (and broader eDiscovery platform you choose) functions correctly, is used properly and can generate reports illustrating that a reasonable process was followed. Remember, making smart decisions to establish a repeatable and defensible process early will inevitably reduce the risk of downstream problems.
2. Predictive Coding Is Just One Tool in the Litigator’s Tool-belt
Although the right predictive coding tools can reduce the time and cost of document review and improve accuracy rates, they are not a substitute for other important technology tools. Keyword search, concept search, domain filtering, and discussion threading are only a few of the other important tools in the litigator’s tool-belt that can and should be used together with predictive coding. Invest in an eDiscovery platform that contains a wide range of seamlessly integrated eDiscovery tools that work together to ensure the simplest, most flexible, and most efficient eDiscovery process.
3. Using Predictive Coding Tools Properly Makes All the Difference
Electronic discovery applications, like most technology solutions, are only effective if deployed properly. Since many early-generation tools are not intuitive, learning how to use a given predictive coding tool properly is critical to eDiscovery success. To maximize chances for success and minimize the risk of problems, select trustworthy predictive coding applications supported by reputable providers and make sure to learn how to use the solutions properly.
4. Predictive Coding Isn’t Just for Big Cases
Sometimes predictive coding applications must be purchased separately from other eDiscovery tools; other times additional fees may be required to use predictive coding. As a result, many practitioners only consider predictive coding for the largest cases, to ensure the cost of eDiscovery doesn’t exceed the value of the case. If possible, invest in an electronic discovery solution that includes predictive coding as part of an integrated eDiscovery platform containing legal hold, collection, processing, culling, analysis, and review capabilities at no additional charge. Since the cost of using different predictive coding tools varies dramatically, make sure to select a tool at the right price point to maximize economic efficiencies across multiple cases, regardless of size.
5. Investigate the Solution Providers
All predictive coding applications are not created equal. The tools vary significantly in price, usability, performance and overall reputation. Although the availability of trustworthy and independent information comparing different predictive coding solutions is limited, information about the companies creating these different application is available. Make sure to review independent research from analysts such as Gartner, Inc., as part of the vetting process instead of starting from scratch.
6. Test Drive Before You Buy
Savvy eDiscovery technologists take steps to ensure that the predictive coding application they are considering works within their organization’s environment and on their organization’s data. Product demonstrations are important, but testing products internally through a proof of concept evaluation is even more important if you are contemplating bringing an eDiscovery platform in house. Additionally, check company references before investing in a solution to find out how others feel about the software they purchased and the level of product support they receive.
7. Defensibility Is Paramount
Although predictive coding tools can save organizations money through increased efficiency, the relative newness and complexity of the technology can create risk. To avoid this risk, choose a predictive coding tool that is easy to use, developed by an industry leading company and fully supported.
8. Statistical Methodology and Product Training Are Critical
The underlying statistical methodology behind any predictive coding application is critical to the defensibility of the entire eDiscovery process. Many providers fail to incorporate a product workflow for selecting a properly sized control set in certain situations. Unfortunately, this oversight could unwittingly result in misrepresentations to the court and opposing parties about the system’s performance. Select providers capable of illustrating the statistical methodology behind their approach and that are capable of providing proper training on the use of their system.
9. Transparency Is Key
Many practitioners are legitimately concerned that early-generation predictive coding solutions operate as a “black box,” meaning the way they work is difficult to understand and/or explain. Since it is hard to defend technology that is difficult to understand, selecting a solution and process that can be explained in court is critical. Make sure to choose a predictive coding solution that is transparent to avoid allegations by opponents that your tool is ”black box” technology that cannot be trusted.
10. Align with Attorneys You Trust
The fact that predictive coding is relatively new to the legal field and can be more complex than traditional approaches to eDiscovery highlights the importance of aligning with trusted legal counsel. Most attorneys defer legal technology decisions to others on their legal team and have little practical experience using these solutions themselves. Conversational knowledge about these tools isn’t enough given the confusion, complexity, and risk related to selecting the wrong tool or using the applications improperly. Make sure to align with an attorney who possesses hands-on experience and who are able to articulate specific reasons why they prefer a particular solution or approach.
Hopefully this top ten list can ensure that your use of “predictive coding” isn’t Malkovich-ized – meaning you understand when, how and why you’re deploying this particularly eDiscovery technology. Without the right context, the eDiscovery industry risks overusing this term and in turn over-hyping this exciting next chapter in process improvement.