In Curtail Rising E-Discovery Costs With Predictive Coding, I discussed how technology-assisted review allows attorneys to train their computers to find relevant documents for them, potentially saving on the cost of e-discovery and document review. Although this technology provides attorneys with another valuable weapon in the battle that is e-discovery, predictive coding - and other tools like it - should not be wielded with impunity. Like anything, attorneys should be mindful of the potential risks lurking ahead.
First, by its very nature, predictive coding uses computer algorithms to replace manual document review traditionally performed by attorneys. Although there is ample support for predictive coding's superior accuracy, one might envision an unhappy client blaming his attorney for "letting the computers do all the work". To avoid this sort of second-guessing, attorneys should discuss the pros and cons of predictive coding with their clients before employing the technology and document their authority to proceed in a subsequent e-mail.
Second, I have seen a
number of cases where the argument over whether and how to employ
predictive coding has taken on a life of its own. Agreements
with opposing counsel should be explored and, if one cannot be had,
the client should be informed of the potential up-front costs that
may be incurred just to get a protocol approved by the Court - and,
also, of the possibility that the suggested approach might
ultimately be rejected.
Finally, beware of what you request. Recently, a San Diego Federal Courtawarded prevailing defendant Qualcomm $2.8 million for costs it incurred for predictive coding technology used to assist in the production of documents culled from a data set of 12 million. Clients should be informed of the possibility of fee-shifting up-front, and protocols should be tailored with full understanding of the possibility that the client may someday end up paying its opponent's bill.
Of course, these concepts are nothing new. The same tips apply no matter what big ticket expense items are being considered.
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