Add a recent Virginia state court order to the growing list of orders regarding the use of technology assisted review (TAR)/predictive coding to reduce the burdens and costs – and, some would claim, to increase the accuracy — of review of electronically stored information (ESI). In a short order, half handwritten, the court in Global Aerospace Inc. v. Landow Aviation permitted defendant’s use of predictive coding “for the purposes of the processing and production of electronically stored information.”
Global Aerospace joins the much-blogged-about TAR disputes in Da Silva Moore and Kleen Products. For those of you keeping score:
- Magistrate Judge Peck’s February decision in Da Silva Moore has devolved into conflict allegations and a motion to disqualify based on Judge Peck’s publicly-stated views on predictive coding and purported interaction with vendors at e-discovery panels and events. Judge Peck and other commentators have squarely rebutted these allegations, and we suspect that this sideshow will not prevent the district court from reaching the merits of the predictive coding dispute.
- With less fanfare, in early April, Southern District of Illinois Magistrate Judge Nolan in Kleen Products, LLC v. Packaging Corp. of America, heard expert testimony on the effectiveness of TAR, or, as Karl Schieneman phrased it: “a classic case of old school search and retrieval approaches of Boolean searches taking on new technology approaches of statistical sampling and predictive coding.”
Stay tuned as courts ponder whether Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review. In the meantime, it is clear that while courts are becoming more open to TAR, we will see more judicial involvement where parties cannot agree on the use and limits of TAR. And even in cases where TAR is permitted, we expect that an opponent of TAR will still have the opportunity to weigh in on and challenge both the inputs to, and results of, the process. As Judge James Chamblin wrote in the Global Aerospace order allowing the use of predictive coding: “This is without prejudice to a receiving party raising with the court an issue as to completeness or the contents of the production or the ongoing use of predictive coding.”