During litigation, the process of electronic discovery — reviewing and identifying what electronically stored information, out of potentially millions of documents, needs to be turned over to the opposing party — often is cumbersome and costly for companies, but a recent court ruling might lead to the more widespread acceptance of technology that could save companies money and time.

Earlier this year, a judge in the Southern District of New York issued the first ruling to put a judicial stamp of approval on the use of predictive coding, a computer-assisted review of electronic documents, a decision that could lead to the widespread acceptance of the technology by the courts, said Gerard Britton, a Jersey City-based attorney and managing director at Doar Litigation Consulting, who speaks widely on e-discovery, as it's commonly known.

"It promises to reduce document review costs dramatically. You can bring down costs by 80 percent in larger document sets in litigation," said Britton, who estimated traditional human document review might cost up to a dollar per document.

E-discovery is essentially the production, or delivery to the other party in a suit, of any relevant documents that are stored or transmitted electronically, according to Sheila Raftery Wiggins, a partner at law firm Duane Morris LLP, in Newark. Electronic documents include e-mails, text messages, tweets and instant messages.

Businesses need to preserve electronic documents for years — or even decades, in industries like pharmaceuticals — to protect themselves from court sanctions as well as to be able to defend themselves against claims when they are sued or to prove their own claims when they sue someone else, Wiggins said. Document preservation is a problem for corporations, mainly because of the overwhelming cost, which can be millions of dollars a year. One of the ways to save money on both litigation costs and day-to-day operations is to have corporate information management policies in place to set forth how and where data and documents will be preserved, and for how long.

"We now communicate more and more by electronic means," Wiggins said. "People also work from home — they're traveling, they're on the train sending e-mails to clients — so that's why electronic discovery, e-discovery, has become more and more important these last few years. Electronic discovery is evidence."

The discovery process has changed over the past 15 years, from attorneys wading through electronically stored information and reading and understanding the text, Wiggins said. Now, with predictive coding, software is trained, through input of a small subset of selected relevant documents, to recognize terms, names and other elements of text in a search of a much larger set of potentially relevant documents, he said.
"Human review is going to be more precise ­— but more expensive," Wiggins said.

Britton agreed that predictive coding is not without its problems.
"It's not magic. It's a machine," Britton said. "It will pull things that are not really relevant, and it will miss things that are relevant."

But according to Mark S. Sidoti, a director at Gibbons P.C. who chairs the law firm's e-discovery task force, e-discovery and predictive coding are here to stay.

"My opinion is that we are headed towards the greater use of things like predictive coding and the greater acceptance of those processes by courts, if for no other reason than the volume of data that cannot be reviewed by humans," Sidoti said. "Many of these cases are becoming cost prohibitive to litigate."

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