United States: Evolving Judicial Attitudes Towards Predictive Coding Suggest It May Soon Be Time To Retire The Defensibility Question

As predictive coding technology began garnering attention, one of the earliest and most common questions among attorneys paying attention to e-Discovery issues – probably the second most common question, right after "does it work" – was whether judges would accept it if opposing counsel challenged its use. As one writer put it in August 2011, attorneys were "left to wonder if predictive coding meets the standard of 'reasonableness' ..." Pepper, Robot Review: Will Predictive Coding Win the Trust of the Courts?, Law Technology News, August 2011. A few months later, Magistrate Peck, writing in the same publication, offered his personal opinion as a support for attorneys considering predictive coding but reluctant to make the leap without judicial blessing:

"Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval. In my opinion, computer-assisted coding should be used in those cases where it will help 'secure the just, speedy, and inexpensive' determination of cases in our e-Discovery world."

A few months later, Judge Peck authored the first judicial opinion endorsing the use of predictive coding. Da Silva Moore v. Publicis Groupe, 287 F.R.D. 102 (S.D.N.Y. 2012). The Da Silva Moore decision, however, widely discussed as it was, still left counsel with defensibility concerns for two reasons. First, Judge Peck was (and is) well known to be in the e-Discovery vanguard, and was already well acquainted with the concept of predictive coding. Helpful as his decision was, the question remained whether other, potentially less tech-savvy judges would be as quick to accept computer review as a reasonable substitute for attorney review of each potentially responsive document. And second, the protocol agreed to by the parties and endorsed by Judge Peck in Da Silva Moore treated predictive coding as a unique species of discovery requiring special safeguards and atypical access to what would typically be the work-product process of making relevance decisions: attorneys for both parties would be provided access to the "seed sets" used to train the predictive coding engine, including documents excluded from production as non-responsive. 287 F.R.D. at 187.

Recent decisions – both reported and unreported – are providing comforting evidence that predictive coding is gaining wide judicial acceptance as a tool available to counsel on appropriate cases.

In April 2012, a Virginia state judge, James Chamblin, endorsed the use of predictive coding over the vigorous protest of opposing counsel. Global Aero. Inc. v. Landow Aviation, L.P., No CL 61040, 2012 Va. Cir. LEXIS 50 (Va. Cir. Ct., Apr. 23, 2012). In a July 2012 decision addressing the sufficiency of a FOIA search, Judge Schiendlin – herself known for her attention to e-Discovery issues – noted that "parties can (and frequently should) rely on ... 'computer assisted' or 'predictive' coding" to identify responsive documents. Nat'l Day Laborer Org. Network v. United States Immigration & Customs Enforcement Agency, 877 F. Supp. 2d 87, 109 (S.D.N.Y. 2012). In January 2013, a Delaware Vice Chancellor issued a sua sponte order directing the parties in a litigation before him to either use predictive coding or show cause why they should not be required to do so. EORHB, Inc. v. HOA Holdings, Inc., No. 7409-VCL (Del. Ch. Ct. Oct. 15, 2012). And just a few weeks ago, two Judges of the Southern District of New York relied in part on the availability of predictive coding in rejecting a burdensomeness objection to a subpoena. See Chevron Corp. v. Donziger, No. 11 Civ. 0691, 2013 U.S. Dist. LEXIS 36353 (S.D.N.Y. Mar. 15, 2013); Harris v. Subcontracting Concepts, LLC, No. 1:12-MC-82, 2013 U.S. Dist. LEXIS 33593 (S.D.N.Y. Mar. 11, 2013).

And, in a December 2012 hearing in which opposing counsel challenged Foley's use of predictive coding and demanded, at the very least, access to samples of the documents excluded as non-responsive (as in the Da Silva Moore protocol), Judge Andrews of the District of Delaware recognized that there was no more reason to provide such access where documents were excluded by predictive coding than there would be to grant access to a sample of documents deemed nonresponsive as a result of linear review:

why isn't that something -- you know, you answered their discovery however you answered it -- why isn't it something where they answer your discovery however they choose to answer it, complying with their professional obligations? How do you get to be involved in the seed batch?

Robocast, Inc. v. Apple, Inc., No. 11-235 (D. Del.) 12/5/2012 Transcript at 16:4-8.

Of course, this is a relatively small sample, so it is too soon to say that the defensibility of predictive coding can be taken as much for granted as, say, keyword search. But the fact that every reported case involving predictive coding has authorized its use suggests that day may not be too far off.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.