Predictive or automated issue coding is a field that is experiencing rapid development in the realm of eDiscovery. As with many new and developing technologies, questions arise regarding both the nature and extent of its use. In Bridgestone Americas, Inc., v. International Business Machines Corporation, No. 3:13-1196 (M.D. Tenn. July 22, 2014), the magistrate judge looked at whether predictive coding was an acceptable change in the case management order.
Bridgestone requested the use of predictive coding in reviewing over two million documents for responsiveness.
Defendant opposed the request for predictive coding on the grounds that:
1. The use of predictive coding was an unwarranted change in the original case management order; and
2. It would be unfair to use predictive coding after an initial screening had been done with search terms.
The magistrate judge stated that “in the final analysis, the uses of predictive coding is a judgment call, hopefully keeping in mind the exhortation of Rule 26 that discovery be tailored by the court to be as efficient and cost-effective as possible.”
The magistrate further iterated:
1. With millions of documents to be reviewed, and costs likewise in the millions, there is no single, simple correct solution possible;
2. Openness and transparency in what Plaintiff is doing will be of critical importance; and
3. Both parties are expected to communicate, through their attorneys and experts and companies doing the work, on a frequent and open basis.
Accordingly, after some guidelines for the use of predictive coding, the magistrate ruled Plaintiff would be permitted to use predictive coding for its own production, on documents that were presently identified and based on search terms that Defendant provided.
Further, Defendant would be allowed to switch to predictive coding if they believed it would be more efficient in the end.