Is predictive coding a practicable alternative method to reviewing ESI documents and when should the parties in a case request it?

Predictive Coding v. Human Review: Which Will the Court Favor?

A party has been burdened with manually reviewing 565,000 potentially relevant documents for search term hits. This manual method of review was agreed on by both parties and memorialized in a court order at the start. Shortly into the review process, the plaintiff realized this method would be costly and time consuming, and took it upon themselves to apply a predictive coding method using the agreed upon search terms. They then moved before the court to be able to use these predictive coding techniques, and not human manual review, to review the documents. The plaintiff argued that the modification to predictive coding should be utilized because it would achieve a more accurate measure of relevant documents, in addition to saving time and money.

The defendant argued the opposite, believing that the predictive coding protocol was complicated and had various other issues involved. They argued that other courts, which have allowed predictive coding, have stressed the need for transparent and cooperative behavior by all parties, a manner of which plaintiff in this case has not acted. They even went as far as to say that the predictive coding protocol utilized by the plaintiffs did not comply with the “best practices” for the chosen software.


The court, although in support of predictive coding, ordered the plaintiff to produce all documents in the agreed upon manner (Human review wins!). “If the parties had worked with their E-discovery consultants and agreed at the onset of this case to a predictive coding based ESI protocol, the court would not hesitate to approve a transparent mutually agreed upon ESI protocol.”  But here, their hands were tied by the earlier court order.


The court also stated that, and agreeing with the defendant’s argument, predictive coding requires a heightened degree of transparent cooperation among parties. “In the few cases that have approved technology assisted review of ESI, courts have consistently required the producing parties to provide the requesting parties with full disclosures about the technology being used, processes, methodology and documents used to “train” computers.” Here, the court found that the Plaintiff has been unwilling to engage in the level of transparency necessary, which they believed would “only result in more disputes and delays.”

TAKEAWAY: The parties, especially the moving party, should have prepared a electronic discovery strategy from the beginning, as the main problem here was that the plaintiff sought to modify an already agreed upon order and the court thought it was too late in the game. Additionally, the parties must be open and transparent about the methodology being used with the technology if predictive coding is the agreed upon ESI method.


Amanda is a third-year student at Seton Hall University School of Law, where she is pursuing a J.D. with a certificate in Health Law. Prior to law school, she was a 2011 magna cum laude graduate of Seton Hall University, where she earned Bachelor of Arts in Political Science and a minor in Philosophy. Presently, she is a law clerk at a small firm handling real estate and bankruptcy matters. After graduation this native New Yorker hopes to work at a mid-sized firm in the Big Apple.


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