Standing back from the Delaware predictive coding case

The Delaware Hooters case promotes not just predictive coding specifically but the idea that lawyers must consider all appropriate tools and techniques to reduce the burden of eDiscovery / eDisclosure. That approach will be required in Engalnd and Wales by April 2013, if it is not in fact required already.

An article called Orange hot pants and predictive coding – a match made in Delaware by Recommind’s Drew Lewis sent me scuttling back to my own article about Vice Chancellor J Travis Laster’s conclusion in “the Hooters case”. Was I one of those who used the expression “judicial activism” in the derogatory sense criticised in Recommind’s article, and was I also one of the “respected industry fixtures” who “jumped on the Chancellor and decried this activism as a harbinger of things to come”?

It appears not, fortunately. In my article Judicial activism: Delaware judge orders both sides to use predictive coding, although I expressed the fear “that this high wire act will go terribly wrong in some unspecified way”, I promoted “hard edged assessments of what is right for the case” and concluded by saying that “perhaps extreme judicial activism is the ‘way to go”.

The key sentence in the Recommind article is this one:

I fully expect that if the parties get together and conclude the case is not appropriate for judicial review, hopefully only after evaluating the data, and properly brief the issue that the Chancellor will allow them out of the prior order.

The pending rule changes in England and Wales, due to take effect in April 2013, will positively require the evaluation, not only of the data, but of the scope of the disclosure, the best methods for achieving it, and the costs which are likely to be incurred as a result. The court will then be able to make a proportionate order from an informed position, one which must inevitably involve consideration of the most appropriate technology for the task. That, as Drew Lewis says in his closing paragraph, is relevant beyond the management of individual cases. We are, he says “living in a time where models for delivering legal services will continue to change rapidly, and this type of support from the bench is a good sign for lawyers who are forced to do more with less for their clients”.

The subject is not just about case management and not just about technology. It is about how lawyers will find new ways to deliver services to their clients.

Drew Lewis refers approvingly (and rightly so) to an article on the same subject on the Hudson Legal blog Like it or not, predictive coding is here and judges want you to use it  The key sentence is this:

… it is all the more important for practitioners to be well informed on the offerings of various tools, the spectrum of methods to apply the technology and the ways in which the intersection of man and machine impact application to Predictive coding.

I would put it yet more bluntly: if as a lawyer that you do not have an understanding of the tools and techniques (the words used in the UK Practice Direction 31B) which are available to manage eDiscovery / eDisclosure problems, then you are probably negligent and almost certainly in breach of your professional duties. If parties show no sign of understanding this, then it is the duty of judges to send them away, as Vice-Chancellor Laster did in the Hooters case, to find out.

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