As an attorney who recently opened a document review outsourcing company in Bet Shemesh, Israel, I have been watching very closely the rise of computer assisted electronic document review and court decisions sanctioning predictive coding. Journals, news reports, websites and blogs are filled with doomsday forecasts for the real-life document review attorneys.
While predictive coding may save money and time, the legal industry, including courts, will not ultimately embrace this technology as openly as first glance may suggest because a computer simply cannot do document review as well as live attorneys.
There must be an alternative to computers replacing people.
What is Predictive Coding
Predictive coding involves a computer copying and duplicating the work of an experienced lawyer. After a top attorney reviews and tags a substantial set of documents, a computer identifies the properties of the documents coded in the sample analyzed by the lawyer; and utilizes those properties to code other documents.
The senior attorney tags additional documents while the computer predicts the lawyer’s coding. When the computer’s predictions sufficiently matches the attorney’s coding, it is determined that the computer system has “learned” how to complete the document review for this part of the discovery process.
What Courts say about Predictive Coding
Magistrate Judge Andrew Peck issued a landmark ruling in February 2012 to allow the use of predictive coding as part of the discovery process.
U.S. District Court Judge Andrew Carter recently affirmed Judge Peck’s decision calling it “well reasoned.” While Judge Carter did not make predictive coding the standard tool for every case involving electronic discovery, it certainly encourages its use in the future. Judge Carter’s reasoned that although there is evidence of slight inaccuracies in the coding done by computers, even documents reviewed by top lawyers exhibit an amount of human mistakes that lead to inaccuracies in the tagged documents.
A Virginia State court recently sanctioned the utilization of predicting coding in the e-discovery process. The respondents requested permission to employ predictive coding for the production of their electronic stored information (ESI). The Loudon County Circuit Judge granted the defendant’s request subject to any challenges plaintiffs may raise upon receipt of defendant’s production of documents during the document review process.
Computers Cannot Be as Effective A Live Attorney
When an attorney sits in front of a computer to review documents, he is prepared to review thousands of documents such as emails, contracts, board minutes, etc. Any lawyer will tell you that identifying the legal significance of an email is more than just identifying key words; rather, it requires understanding office environments, English jargon, legal or corporate code-words, and American culture. Computers simply cannot do that from copying an attorney’s tagging of a set of sample documents.
Another example of how computers cannot do document review like a live attorney concerns how reviewers identify and code a new document. When conducting a project, attorneys consistently consult one another and “schmooze” about how to tag a never-seen-before document. Computer’s cannot consult or schmooze.
Outsourcing to Israel is the Alternative to Predictive Coding
The primary driving force behind courts turning to predictive coding is saving money. There is no question that having a computer tag tens of thousands of electronic documents is significantly cheaper than hiring an army of attorneys to work in some cramped New York office. In addition, a computer can code the same mountain of documents more quickly than a team of live document reviewers.
Outsourcing your document review project to Israel is how you can save money and receive accurate and efficient analysis. Israel possesses a large pool of English speaking, U.S. educated, U.S. licensed attorneys who have relocated to Israel after successful legal careers in America. Seasoned attorneys, many of whom have already done document review, will be able to provide consistent, accurate and quick analysis at significant savings.
