In 2010, “predictive coding” or “computer-assisted review” was considered the next big thing in ediscovery, destined to replace linear review and keyword searching as the predominant methodology during document review. Fast forward 5 years and where are we? Has the “next big thing” arrived?

Predictive coding, which uses computer algorithms to determine which documents are most likely to be relevant based on a sample set of documents reviewed by a subject matter expert (i.e. lawyers), can result in substantial cost savings. It can be used to cull the volume of documents to be reviewed or prioritise the order of review, allowing key documents to be found more quickly.

Whilst it has gained acceptance in the United States and there are judicial decisions supporting its use (see for example, Monique Da Silva Moore v. Publicis Groupe et al, and Good et al v. American Water Works Company), in Australia the “next big thing” remains just that.
Whilst there is no doubt it is being used, anecdotal evidence suggests that it is far from standard practice and still treated by many lawyers with caution. This is despite the research that says that when managed and administered properly, it may increase accuracy and save time.

Slow take-up
So why the slow adoption rate? There are many different views. One is that legal practitioners, in the context of high stakes litigation and a lack of judicial guidance in Australia, are reluctant to embrace new technology because it is too radical a departure from the standard practice of review.  Others suggest there are different issues at play.

In a US article written in 2013 for the Hastings Science and Technology Law Journal (Informed Buyers of E-discovery: Why General Counsel Must Become Tech Savvy, HSTLJ, Vol 5:2, Summer 2013, p281), John Didday argued that prevailing views on the technology are not the main barrier to the effective adoption of electronic discovery tools.  Rather the “greatest hurdle begins with general counsel and their outside attorneys” who are not incentivised to change.
Didday states that despite the high cost of discovery, there at least three factors that make lawyers disinterested in updating their ediscovery technology: (a) they believe their current system is defensible; (b) they believe the current system works, and (c) the current system makes them tremendously wealthy.” He went on to say that “in-house counsel must be the agent of change in legal technology because no-one else will”. They should hire tech-savvy employees and demand the use of effective cost saving technology.

Whether the appetite for change here in Australia currently exists or not, as volumes of electronically stored information continue to grow exponentially, traditional review methods must evolve. Predictive coding software may not be the holy grail (in fact in some matters it may be entirely unsuitable, for example where there are large numbers of text free documents such as drawings or photographs), however for the right matters, it is an effective aid to human review.
The challenge of dealing with electronically stored information or “big data” is of course not restricted to the discovery world and the use of predictive coding software for broader information governance is a growing market.

In 2014, one of the providers of predictive coding software, Equivio, was acquired by Microsoft. In a press release, Microsoft said that they were making the acquisition “to help our customers tackle the legal and compliance challenges inherent in managing large quantities of email and documents” and that they plan to extend the use of the technology in Office 365. The scope of application for any organization seeking to manage large volumes of data therefore appears limitless.

So whether in ediscovery or beyond, the next big thing may not have “arrived” in Australia but as lawyers become more at ease with the technology, better informed about its benefits and the push from the corporate world to reduce the costs of discovery gets stronger, it will surely find its way.

Anna Fry is a former litigation lawyer and Director at NuLegal, a company specialising in forensics, ediscovery and electronic trials. anna.fry@nulegal.com.au