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Editor’s Note: Published in the Richmond Journal of Law & Technology, the paper Calling an End to Culling: Predictive Coding and the New Federal Rules of Civil Procedure by Stephanie Serhan provides cogent considerations and conclusions as to the use of predictive coding and the timing of that use in relation to keyword culling.

Predictive Coding and the New Federal Rules of Civil Procedure

Extract and Complete Paper by Stephanie Serhan

This paper examines the impact of the most recent amendments to the Federal Rules of Civil Procedure on the current split between courts about whether predictive coding should be applied at the outset or to a set of keyword-culled documents.

Two Methods of Predictive Coding Use

  • Applying predictive coding to the entire universe of documents at the beginning of the discovery phase. All documents are gathered, and the predictive coding technology is applied to all of the documents at the outset as a whole.
  • Applying predictive coding to a set of documents that has already been reduced in size by keyword search techniques.

Assertions on Accuracy

  • Applying predictive coding on the entire set of documents is the most accurate method for identifying relevant documents because it is applied to all documents, rather than the ones selected by keyword culling.
  • Keyword culling is not as accurate because the party may lose many relevant documents if the documents do not contain the specified search terms, have typographical errors, or use alternative phraseologies The relevant documents removed by keyword culling would likely have been identified using predictive coding at the outset instead.
  • Therefore, keyword culling is not as accurate as predictive coding when used on the entire set of documents at the outset.

Assertions on Efficiency

  • The use of predictive coding at the outset can be beneficial in narrowing down documents based on even “‘linguistic’ or ‘sociological’” relevance.
  • Keyword culling narrows down the universe of documents by conducting a keyword search that does not identify other potentially relevant documents but simply searches through the documents using the keywords that are chosen.
  • Keyword culling can be useful since it narrows down the universe of documents to a much smaller number, as it does not predict other potentially relevant documents.
  • It may be quicker for the technology to simply apply keyword searches prior to predictive coding to limit the number of documents that need to be coded, but once again, it comes at the cost of accuracy in revealing responsive documents.

Assertions on Cost

  • Since predictive coding would be employed under each of the two methods, the costs associated with each are not significantly different.
  • The majority of costs associated with predictive coding come from: the time of a senior attorney who is intimately familiar with the case, the cost of employing a company that has the available technology and software to run predictive coding, and the time associated with training the software to identify relevant documents.
  • The actual cost of predictive coding will likely be substantially equal in both methods since the majority of the costs will be incurred in both methods.

Conclusion

Predictive coding should be applied at the outset on the entire universe of documents in a case. The reason is that it is far more accurate, and is not more costly or time-consuming, especially when the parties collaborate at the outset.

The Complete Paper (Richmond Journal of Law & Technology)

Serhan-Final-2


Source: Stephanie Serhan, Calling an End to Culling: Predictive Coding and the New Federal Rules of Civil Procedure, 23 Rich. J.L. & Tech. 5 (2016), http://jolt.richmond.edu/index.php/volume23_issue2_serhan/.

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