Ride the Lightning

Recommind Predicts Predictive Coding Will Be An Ethical Requirement

December 12, 2012

My first reaction when I read the posting by Howard Sklar, senior corporate counsel at Recommind, was to smile. Recommind may sometimes be wrong, but it is never uncertain. And it has garnered a reputation for brashness in its public pronouncements.

Mind you, I'm a huge fan of technology-assisted review (couldn't resist using a more neutral term). The trouble, as I see it, is that this technology makes perfect sense for those who daily breathe the rarefied air of mega-cases, but it runs into huge costs and proportionality issues in small to mid-sized cases.

There may be a day when technology-assisted review is available to one and all at a reasonable price, but that day probably won't be here anytime soon. Heck, many of the vendors who purport to offer predictive coding come far short of the mark.

As for the probability of a state bar's ethic counsel opining "that failure to use predictive coding is ethically questionable, if not unethical," I think we'll be waiting a long time for that one, not the 18 months that Howard projects.

Did ethics counsel opine that native productions made more sense and were more economical than TIFF productions? I think the most we are likely to see from bar ethics counsel is the sort of language they have used about information security – that an attorney must balance the sensitivity of the data with the security of the means of transmission or storage, taking into account its burden and expense. Bar ethics folks are very sensitive not to set the bar unduly high for solos and small firms who must carefully consider proportionality in discovery.

Howard is certainly right that PC/CAR/TAR by any other name has become a love fest at technology and e-discovery conferences. That is partially about the merit of what it can do. But looming large is a factor that most TAR folks don't like to talk about – that the e-discovery world has discovered another gold rush akin to the early days when the world really began to awaken to significance of electronic data. And no one in the marketplace wants to see this gold rush vanish.

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