Beyond the Myths: Predictive Coding in E-Discovery
It’s been over four years since Da Silva Moore energized the legal tech industry, bringing predictive coding into the wider legal lexicon. Also known as technology-assisted review (TAR), predictive coding leverages machine learning to apply human relevancy decisions to documents across a dataset, ranking them according to likely relevance. Yet despite growing awareness and adoption, myths and misconceptions continue to propagate.
The amended FRCP and new ethical obligations to understand technology create a near-mandate for attorneys to appraise the benefits and risks of predictive coding. This session will provide an in-depth study of predictive coding from legal theory and case law analysis to practical implementation and unconventional use cases.
Since Da Silva Moore there have been almost 40 opinions that further discuss predictive coding issues that will be covered in this session, including:
- Defensible workflows
- TAR 1.0 vs TAR 2.0
- Transparency obligations
- Cooperation guidelines
- Combining analytics
- Negotiating protocols
- Proportionality principles
Session attendees will walk away with comprehensive case law guides and practical implementation tips from meet & confer tactics to vendor dialogue.
- Landscape & Setting
- Overview of data in litigation and business challenges
- Note the developments in law re: eDiscovery and technology competency
- ABA Model Rule 1.1 Amendment, CA Ethics Opinion
- FRCP Amendments (specifically, changes to proportionality and timetables)
- Predictive Coding Terms and Definitions
- Define key data terms (analytics & PC)
- Workflow walkthroughs (including continuous learning workflow)
- Tee up PC Case law – many issues stem out of the different workflows
- Predictive Coding Case Law: Defensibility
- Topic issue: Is PC judicially defensible in principle?
- Cases to brief and discuss: Da Silva Moore, Rio Tinto, Pyrrho (UK), IBRC (IE)
- Discussion re: Different workflows and context that impacts judicial countenance
- Predictive Coding Case Law: Analytics in Concert
- Topic Issue: Can you use PC with other Analytics?
- Cases: Biomet I, Bridgestone
- Discussion re: Different workflows and tools that impact completeness of data set (i.e., end-of-branch and de-duplication)
- Transparency (potentially to be combined with disclosure/protocol negotiation)
- Topic Issue: Do you tell opposing counsel/court about using PC?
- Cases: Dynamo Holdings, Connecticut General
- Discussion re: Tactical considerations to transparency and different contexts (e.g., impact of private litigation vs. government inquiry)
- Disclosure (Need to re-title this section to avoid confusing UK audience)
- Topic Issue: Do you need to disclose “seed set” docs?
- Cases: Biomet II
- Discussion re: Different workflows again and the scope of FRCP 26
- Hot issue: Does new FRCP 26 change the court’s analysis in Biomet II?
- Issue 2: Does privilege attach to “seed set” docs?
- Material: Judge Facciola & Phil Favro Law Review Article (FCLR)
- Discussion: Even if docs are within realm of discovery, does work-product apply?
- Hot issue: Is legal judgment being exercised in all contexts?
- Protocol Negotiation
- Topic issue: Considerations for drafting discovery protocols with predictive coding
- Cases: Progressive, Bridgestone
- Discussion: What are the common points of failure in protocols? What are issues lawyers need to keep in mind during protocol negotiation?
- Hot issue: Getting vendors / experts involved in the negotiation stage
- Hot issue 2: Matrix of negotiation points compared across workflows
- Privilege Review
- Topic Issue: Using PC for privilege review
- Cases: American Water Works
- Discussion: Using PC for privilege review, conditioning 502(d) negotiation on PC
Who Should Attend:
- E-Discovery Attorneys
- Trial and Litigation Attorneys
- Legal Counsel
- Legal Risk Officers and Administrators
- Records & Information Directors and Managers
- IT Professionals
- Other Interested Professionals
An intellectual property and antitrust litigator by experience, Mr. Hal Marcus began evangelizing legal technology to his colleagues at an Am Law 100 Wall Street firm before moving west and joining LexisNexis, commencing a career in litigation technology that now spans two decades and includes executive and general counsel roles at LiveNote, Law.com, and Thomson Reuters. An accomplished public speaker and industry writer, Mr. Marcus has led hundreds of MCLE presentations and conference seminars, and contributed to publications by ILTA and the ABA Litigation Section. Today, Mr. Marcus is excited to bring his diverse experience to Recommind’s product marketing team, helping to education litigation professionals worldwide on some of the most exciting eDiscovery technology available.
Mr. Marcus earned his J.D. from the University of Michigan Law School and his B.A. from Wesleyan University.
An intellectual property and antitrust litigator by experience, Mr. Hal Marcus began evangelizing legal technology to his colleagues at an …
Adam Kuhn is a licensed attorney and the newest member of the Recommind team. An experienced legal writer and law review editor, his works have been published by scholarly journals including the Wake Forest Law Review. Prior to joining Recommind, Adam worked as a legal analyst for a Fortune 500 company and as a senior research fellow at the McCarthy Institute for IP & Technology Law. Adam holds a JD and MBA from the University of San Francisco and a BA from New York University.
Adam Kuhn is a licensed attorney and the newest member of the Recommind team. An experienced legal writer and law …
Eric B. Evans is a partner in the Litigation & Dispute Resolution practice in Mayer Brown’s Palo Alto office. He concentrates his practice on complex litigation and intellectual property matters. He represents major companies in large-scale federal false advertising and antitrust class actions, as well as patent and trade secret matters. He also leverages a prior career in information technology to provide information governance and cybersecurity advice. He is also the West Coast co-chair of the firm’s Electronic Discovery & Information Governance practice and a member of the Cybersecurity & Data Privacy practice.
Before he attended law school, Eric served as Associate Director of Instructional Technology at Denison University, where he acted as Denison’s Digital Millennium Copyright Act agent and enforced and redrafted the university’s Acceptable Use Policy for Network Resources. He also designed and deployed highly secure Windows NT and 2000 client images on more than 400 computers located in more than a dozen computing facilities. He also holds an A.M. Degree in Middle Eastern Studies and an A.B. summa cum laude in Near Eastern Languages and Civilizations from Harvard University, where he was inducted into Phi Beta Kappa. He received a Fulbright Scholarship to the University of Jordan in Amman, where he studied Arabic and history.
Eric B. Evans is a partner in the Litigation & Dispute Resolution practice in Mayer Brown’s Palo Alto office. He …
Ethan Ackerman counsels clients in complex litigation, particularly as it relates to electronic discovery (eDiscovery). Working with clients and also with other counsel, Ethan tailors plans for effectively handling, and minimizing, electronic discovery in civil litigation, arbitration or administrative proceedings. He advises on all phases of trial practice, including prelitigation counseling regarding legal hold and document preservation, information management and records retention policies, protective orders and relief, discovery response planning, technology-assisted review defensibility, and cost recovery.
Ethan Ackerman counsels clients in complex litigation, particularly as it relates to electronic discovery (eDiscovery). Working with clients and also …
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About Recommind, Inc.
Recommind is a leader in information intelligence, delivering breakthrough software applications that harness the power of information to solve concrete business problems. Recommind customers include AstraZeneca, BMW, Cisco, Clifford Chance, Marathon Oil, Morgan Lewis, the U.S. Securities and Exchange Commission (SEC), Swiss Re, the U.S. Department of Energy (DOE), White & Case and WilmerHale. Recommind is headquartered in San Francisco and has offices in New York, Boston, London, Sydney and Bonn, Germany. For more information go to www.recommind.com
About Mayer Brown LLP
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About Morgan, Lewis & Bockius LLP
Morgan Lewis offers more than 2,000 lawyers, patent agents, benefits advisers, regulatory scientists, and other specialists—in 28 offices across North America, Europe, Asia, and the Middle East. The firm provides comprehensive litigation, corporate, transactional, regulatory, intellectual property, and labor and employment legal services to clients of all sizes—from globally established industry leaders to just conceived start-ups.