The document discusses the ethics of using predictive coding for e-discovery. It begins with an agenda that includes defining predictive coding, discussing strategy and tactics, identifying ethical traps, addressing defensibility, and concluding with a question and answer session. Some key points covered include considering whether to disclose predictive coding use with opposing counsel, how to handle the seed set and training documents, protecting privileged materials, satisfying reasonable inquiry standards, and documenting the review process to defend its use. Resources on predictive coding and a contact are provided at the end.

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The Ethics of Predictive Coding
Developing strategy, implementing
tactics, and avoiding ethical traps

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3. ENTER
‘ETHICS20’

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Speakers
Philip Favro
Senior Discovery Counsel
Recommind, Inc.
Gareth Evans
Litigation Partner
Gibson, Dunn & Crutcher
Stacey Blaustein
Corporate Litigation Counsel
International Business
Machines, Inc.

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What is Predictive Coding?
Strategy and Tactics
Ethical Traps
Defensibility
Resources / Q & A
Agenda

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• DOJ has sued Acme Corp. under the
False Claims Act for $2.5 billion in damages
• DOJ is seeking responsive ESI from a
universe of 20 million Acme documents
• Acme is looking at various options to expedite
its production of responsive ESI to DOJ,
including the use of predictive coding
Hypothetical

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What is Predictive Coding?

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Judicial Definition of Predictive Coding
“Under predictive coding, the software
‘learns’ a user's preferences or goals; as
it learns, the software identifies with
greater accuracy just which items the
user wants, whether it be a song, a
product, or a search topic.”
In re Biomet, 2013 U.S. Dist. LEXIS 84440,*3
(N.D. Ind. Mar. 25, 2013)

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Another Court Definition of Predictive Coding
“Through iterative learning, these methods
(known as ‘computer-assisted’ or ‘predictive’
coding) allow humans to teach computers
what documents are and are not responsive
to a particular FOIA or discovery request and
they can significantly increase the
effectiveness and efficiency of searches. ”
Nat'l Day Laborer Org. Network v. United States Immigration &
Customs Enforcement Agency, 877 F. Supp. 2d 87, 109 (S.D.N.Y., 2012)

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Strategy and Tactics

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To Disclose or Not To Disclose?
How many of you agree with the
following statement?
“Advise opposing counsel that you
plan to use computer-assisted coding
and seek agreement; if you cannot,
consider whether to abandon
predictive coding for that case or go
to the court for advance approval.”
Da Silva Moore v. Publicis Groupe, 287 F.R.D. 182, 184 (S.D.N.Y. 2013)

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• Will the training set be randomly selected,
targeted, or a hybrid of both?
• Will opposing counsel be allowed to help
develop the training set?
• How will you address the disclosure of
non-responsive and privileged materials
in the training set?
How Will The “Seed Set” Be Handled?

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No Obligation to Disclose Non-Responsive Documents
In re Biomet, 2013 U.S. Dist. LEXIS 172570, *3 (N.D. Ind. Aug. 21, 2013)
“The Steering Committee wants the whole
seed set Biomet used for the algorithm's
initial training. That request reaches well
beyond the scope of any permissible
discovery by seeking irrelevant or privileged
documents used to tell the algorithm what
not to find.”

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Other Key Considerations
• Will discovery be staged?
• How to accurately determine prevalence?
• Will clearly non-responsive ESI be removed
before training the predictive coding tool?
• What score assigned to a particular
document will be the production cut-off
point?
• How are you handling privilege reviews?
• What is your validation process?

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Ethical Traps

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• Safeguarding Work Product
• Protecting Privileged Materials
• Satisfying the Rule 26(g) Certification
Common Ethics Traps Associated with Predictive Coding

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“The Steering Committee wants to know, not
whether a document exists or where it is, but
rather how Biomet used certain documents
before disclosing them. Rule 26(b)(1) doesn't
make such information disclosable. The only
authority the Steering Committee cites is a
report of the Sedona Conference . . .”
No Obligation to Disclose Opinion Work Product
In re Biomet, 2013 U.S. Dist. LEXIS 172570, *4 (N.D. Ind. Aug. 21, 2013)

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• Should privileged materials be culled from
the universe of potentially responsive ESI?
• How can the privilege be protected if a
negotiated protocol requires privileged
materials be included in the seed set?
• What search methods and quality control
measures are in place to identify privileged
materials before production?
• Is there a Rule 502(d) order in place?
Implementing Privilege Safeguards in the Review Process

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• Must you disclose the use of predictive
coding and/or enter into a stipulated
protocol to comply with Rule 26(g)(1)(B)?
• If you fail to do so, could you be
precluded from using predictive coding?
Satisfying the Rule 26(g) Reasonable Inquiry Standard
Progressive v. Delaney, 2014 U.S. Dist. LEXIS 69166 (D. Nev. May 19, 2014)

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Defensibility

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• Have a well-documented process
• Demonstrate that the process is
reasonable; perfection not required
• Consider whether to disclose PC use;
agreements on front-end might be
beneficial, but could still be problematic
Defending the Process

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Resources / Q & A

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Resources
Hon. Patrick J. Walsh,
Rethinking Civil Litigation in Federal District Court,
40 LITIG. 6, 7 (2013)
Dana A. Remus,
The Uncertain Promise of Predictive Coding,
99 Iowa L. Rev. 1691 (2014)

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RESOURCES
http://www.recommind.com/mind-over-matters

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Q & A

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Thank you!!
Philip J. Favro
Senior Discovery Counsel
phil.favro@recommind.com
(650) 714-9134