Advice From Counsel: Can Predictive Coding Deliver on its Promise?

"Black Box” Technology among Counsel’s Top Predictive Coding Concerns in FTI Consulting Study

FTI Consulting Predictive Coding Study

FTI Consulting Technology has published the results of a predictive coding study of 24 in-house and law firm counsel. The study provides the perspective of leading corporations and law firms on high-profile court rulings, cost savings estimates, adoption inhibitors, and a wide range of other predictive coding benefits and concerns.

“The study illustrates where the legal industry is today with adoption of predictive coding technologies,” said Joe Looby, co-author of the report and a Senior Managing Director in the FTI Consulting Technology practice. “Clearly, attorneys are excited about the potential to save time and money but are taking measured steps to ensure that the technologies are used in an effective and defensible manner.”

Key findings in the report include:

When asked to rank the reasons for using predictive coding, “replace costly human review with machine review” was not one of the top four reasons given by respondents. The respondents’ top four ranked reasons for using predictive coding were:

1. To prioritize documents for review: Respondents could put important documents at the front of the review queue.
2. To eliminate irrelevant documents: Reviewers could focus on important materials while irrelevant materials were culled out.
3. To test or validate human coding decisions: As a quality assurance (QA) method, predictive coding could act as another check to ensure correct coding decisions.
4. To find more responsive documents: Legal teams could use predictive coding to supplement keyword searches and discover additional relevant materials.

The respondents also ranked the following top four reasons for not using predictive coding technologies:

1. It is a “black box” technology: Respondents expressed concern about understanding and explaining in court “what goes on underneath the hood” with predictive coding software.
2. It is not well-suited for “needle in the haystack” investigations: In certain investigative matters, predictive coding may not be able to find all the “hot” documents.
3. Fear of inadvertent production: There is concern that production of predicted coded documents without review or confirmation could lead to privilege waiver.
4. Respondents do not want to be early adopters: Respondents are conducting pilot projects, selecting specific matters and talking with industry experts to learn more.

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In conjunction with this study, FTI Consulting Technology will host a three-part webcast series, featuring leading e-discovery experts, to discuss the practical implications and application of predictive coding technologies.

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FTI Consulting Predictive Coding Study
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