Adam Kuhn of Recommind adds to Recommind’s collection of lucid articles on all matters eDiscovery with an article called Bridgestone v. IBM Approves Predictive Coding Use, Rejects Progressive.
Adam summarises the Bridgestone case thus:
There are two key issues presented in Bridgestone that attorneys face on a routine basis. The first is whether a party can use keyword searches to narrow the universe of potentially responsive information before adopting a predictive coding workflow. And the other is whether a party may adopt predictive coding technology in the middle of discovery and in the face of a conflicting case management order. In short, the court answered both affirmatively.
Other points come up which are relevant in any jurisdiction: it is generally for the responding party to decide what search methods it uses to perform its duties, and the court’s role is to facilitate that in compliance with the obligation that “discovery be tailored by the court to be as efficient and cost-effective as possible.”
Name me a jurisdiction in which that is not the aim and the duty. I thought not. Now name one where the courts are actively pursuing that duty as a matter of course in bigger cases. Quite.
It is for the parties to take the initiative here, informing themselves so that they can argue with opponents and articulate benefits and drawbacks to the court. The neat and ideal model so believed of some rule-makers and judges pre-supposes that the best course, and its consequences, will be clear from the start. Real life shows something rather different, and courts must be willing to consider a change of tack to meet developing circumstances.