Although the use of predictive coding / technology assisted review seems new to litigation lawyers, the concept behind it has been used for years and in a wide range of business applications. Reduced to its essentials, predictive coding takes a subset of source material and, through a mixture of human and technology input, identifies wider document sets by reference to the characteristics of the training set.
The application of this to litigation eDiscovery, to regulatory and internal investigation is obvious (or it jolly well should be), but the principles apply equally in other business circumstances where it is necessary for a company or its lawyers to identify things which may have impact later.
I use that neutral word “things” deliberately, because finding documents or other electronic sources is just the beginning of the enquiries which must be made – the technology is not an end in itself, nor is it enough merely to identify the right sources: what a company needs to know is what it should be anticipating so that contingency plans can be made to deal with it. That has application in, for example, company acquisitions where one company may need to assess both the value and the risk lying in email and other documents of another, or on a product launch, particularly in a high-risk area such as finance, healthcare and pharmaceuticals.
It is the latter area which is focused on by Laura Kibbe, Managing Director, Expert and Professional Services at Epiq Systems. Laura was Senior Corporate Counsel and Managing Director of the eDiscovery Response Team at Pfizer Inc before joining Epiq and has unrivalled experience of the pharmaceuticals industry both as client and as service provider. She is also one of the most eloquent advocates of the proportionate use of technology to business problems, as I said in my recent article about Hong Kong where we did presentations together.
Her article on Law Technology News, headed There’s More to TAR Than Litigation, has the subheading Proactive use of technology-assisted review could help Pharma and other industries manage risk.
Laura walks us through the steps which might be taken in undertaking a pre-launch risk assessment for a new product and for helping to identify potentially non-compliant behaviour once the launch is accomplished. Her focus is on the avoidance of compliance risk, on protecting privilege as the exercise proceeds, and on the combination of informed legal thoughtfulness and technology to achieve these exercises proportionately. It is as good an explanation as you will find of the wider application of this breed of technology and (crucially) of the human input and thoughtfulness which must accompany it.