It is perhaps not surprising that we have yet to arrive at a universal name for the set of algorithms and processes which lie at the higher end of the eDiscovery / eDisclosure market. Barry Murphy addresses this in an eDiscovery Journal article called Technology-Assisted Review: What Should We Call This Market?, showing by his article’s title that one cannot even open the discussion without picking one of the variants to establish what the subject is.
If I favour predictive coding, it is because that is the term used by the first entrants into the market, becoming a useful label more or less divorced from the bare meaning of the words. Those who came afterwards wanted simultaneously to claim their place at what was evidently becoming the top table whilst simultaneously seeking differentiation – a differentiation which the first-comers are equally keen to preserve. Barry Murphy identifies some of the terms and gives us a poll in the hope of steering us towards a consensus.
None of the suggestions is obviously right in any objective sense, and I suspect that we will continue to use a variety of terms for what is, after all, a non-standard set of products and functions. I do not think that the lack of a unifying label will be the main brake anyway – that will be timidity and the staggering lack of commercial curiosity which has most lawyers simply grafting their traditional approaches on to volumes they were not designed for – like using nail clippers to harvest a prairie wheat field. Meanwhile, those lawyers who do understand all this will not much care what they call it but will just get on and use it.
We will reach the point, and faster than we expect, where failure to consider all the options, whatever they are called, will itself be at best a case-loser and a client-loser, and at worst a breach of professional duty and grounds for potential negligence claims.
The debate is worth having, however, and those who are interested may care to complete the poll.