CAOC Event Takeaway: Resistance to Predictive Coding is Futile

Last week, Cecilia and I had the pleasure of attending the annual gathering of the Consumer Attorneys of California in San Francisco.  We were there in part to represent Everlaw in sponsoring a CLE session entitled “The Plaintiffs’ Essential Ediscovery Toolkit: Initial Conferences and Predictive Coding.”  As you would expect with a crowd this passionate and diverse, it was a lively event that yielded some good discussion about the current state of affairs and where we’re headed.

Consumer Attorneys of California ConventionThe ediscovery session was moderated by Dennis Canty of Kaiser Gornick, and featured panelists Jennie Lee Anderson of Andrus Anderson, Lea Malani Bays of Robbins Geller, and Lexi J. Hazam of Lieff Cabraser.  The core topics—what to cover in your initial conferences on ediscovery, and how best to approach predictive coding—were covered in a refreshingly straightforward and practical way.  Clearly, it helps to have panelists who are not only experts, but also great teachers to the uninitiated.

As with the ediscovery session at the American Association for Justice convention earlier this year, I found the discussion of predictive coding particularly interesting, and not just because we’ve since released our own predictive coding technology. 

The panelists basic message: when it comes to defendants’ usage of predictive coding, resistance is futile.  Indeed, courts are not only increasingly favoring its usage (see, e.g., Judge Peck’s opinion in the widely-cited Da Silva Moore v. Publicis Groupe case), they’re also admonishing those who resist (see, e.g., Judge Laster ordering parties to “show cause” as to why they should not use predictive coding in EORHB, Inc. v. HOA Holdings LLC).  It’s therefore wise for plaintiffs’ counsel to engage defense counsel early—ideally, in the meet and confer prior to the Rule 26 conference—to encourage and define how predictive coding will be used in the case. 

Moreover, resistance is irrational.  The superiority of a predictive coding-based approach over purely manual review is now welldocumented.  A faster, cheaper, and more accurate process benefits everyone.  Even when plaintiffs can’t get the defendants to use predictive coding, they should be employing it themselves to save money and get to hot documents faster.

Thanks to Dennis Canty and the CAOC organizers for putting together a fantastic event!