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1 E-Discovery in Mass Torts: Predictive Coding Friend or Foe? Sherry A. Knutson Sidley Austin One S Dearborn St 32nd Fl Chicago, IL (312)

2 Sherry A. Knutson is a partner in Sidley Austin LLP s Chicago office. Ms. Knutson s practice ranges from multi-plaintiff, multi-jurisdiction litigations to single plaintiff cases. Her mass tort experience includes complex multidistrict and related state litigation, class actions, and national coordination and defense of product liability and toxic tort cases, including Actos, Gadolinium-Based Contrast Agents, Yaz, Trasylol, Celebrex/Bextra, Baycol, and latex gloves. She also has served as lead counsel in individual lawsuits involving a variety of personal injury claims. Ms. Knutson extends a special thanks to Susan Brehm for her assistance.

3 E-Discovery in Mass Torts: Predictive Coding Friend or Foe? Table of Contents I. What Is Predictive Coding? II. The Relevant Case Law III. Take-Away Points Endnote E-Discovery in Mass Torts: Predictive Coding Friend or Foe? Knutson 407

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5 E-Discovery in Mass Torts: Predictive Coding Friend or Foe? Production of electronically stored information (ESI) has added substantial time, costs, and complexity to discovery particularly in cases with large-volume ESI such as product liability mass torts. Under the traditional production model, keyword searches are run across custodians ESI to cull potentially responsive documents. A team of people then manually review all culled documents to make responsiveness determinations. The party produces those documents that are deemed responsive and non-privileged by reviewers. This method is costly and subject to human error. As a result, parties have begun considering use of predictive coding a form of technology-assisted review in an attempt to reduce the need for manual review of ESI. I. What Is Predictive Coding? Rather than conducting a keyword search and full manual review, predictive coding relies on trained software to help determine the relevance of ESI. Software is trained by first selecting a sample or control set of documents that experienced attorneys either representing the producing party or sometimes both sides analyze and code for relevance. The software uses this coding to identif[y] properties of those documents that it [then] uses to code other documents. Da Silva Moore v. Publicis Groupe SA, No. 11 Civ. 1279, 2012 WL , at *2 (S.D.N.Y. Feb. 24, 2012). As the attorneys code more sample documents, the software builds an algorithm that begins to predict the reviewers coding. Id. The reviewers test and refine the algorithm in order to verify that the software is accurate at retrieving responsive documents. Eventually, the software s algorithm and the reviewers coding will be sufficiently similar to permit the software to make subsequent responsiveness determinations. In general, attorneys will need to review a few thousand documents to properly train the software. Id. Once the software is trained, the algorithim is run across the entire document collection. Some predictive coding software simply provides a binary yes-no response as to the relevance of the documents. Other software provides a scaled relevance score for each document: for example, a relevance score of 0 through 100, with 0 being least likely to be relevant, and 100 being most relevant. The parties can reach agreement on the cut-off relevance score that will be used to determine which documents need to be reviewed manually. For instance, the parties could agree that all documents with a relevance score of 80 to 100 will undergo manual review to make final responsiveness determinations for production. II. The Relevant Case Law Only a few courts have addressed the issue of predictive coding. In Da Silva Moore v. Publicis Groupe SA, No. 11 Civ. 1279, 2012 WL (S.D.N.Y. Apr. 26, 2012), Judge Andrew Carter affirmed Magistrate Judge Andrew Peck s order approving use of predictive coding over plaintiffs objections. In his order, Magistrate Judge Peck concluded that computer-assisted review is an acceptable way to search for relevant ESI in appropriate cases. Da Silva Moore v. Publicis Groupe SA, No. 11 Civ. 1279, 2012 WL , at *2 (S.D.N.Y. Feb. 24, 2012). According to Magistrate Judge Peck, computer-assisted coding should be used in those cases where it will help secure the just, speedy, and inexpensive determination of cases in our e-discovery world. Id. (quoting Fed. R. Civ. Proc. 1). Judge Carter agreed, finding that Judge Peck s decision properly recognized the potential advantages and disadvantages of the predictive coding software to be used. Da Silva, 2012 WL , at *2. E-Discovery in Mass Torts: Predictive Coding Friend or Foe? Knutson 409

6 Magistrate Judge Peck, who had published an article on predictive coding four months earlier on the website Law Technology News, identified a number of factors that support the use of predictive coding software: Manual review is too expensive in most cases. Da Silva Moore, 2012 WL , at *9. Statistics show that computerized searches are at least as accurate as manual review if not more accurate. Id. at *9. Keyword searches alone are generally not sufficient. Id. at *3. Particularly at early stages, the requesting party may not have sufficient information about the terminology or abbreviations used by the custodian to suggest keywords that will capture the relevant documents. Id. at *10. Keyword searches frequently produce overinclusive results, with numerous irrelevant documents. Id. Keyword searches are often not very effective. For example, in a study that attempted to use keywords to retrieve at least 75 percent of relevant documents, searchers believed they had met this goal, but really only found 20 percent of the relevant documents. Id. at *9. Magistrate Judge Peck also acknowledged the potential problems that might arise in discovery that involves predictive coding. He advised that the party seeking to use predictive coding should be prepared to show both the court and the opposing party (1) what the procedure entails, and (2) why that procedure produces defensible results that is, that the procedure produce[s] responsive documents with reasonably high recall and high precision. Id. at *2. As used in Magistrate Judge Peck s Order, recall measures completeness; precision measures accuracy. Id. at *9. In other words, precision and recall determine how effective the procedure is at finding all responsive documents, but only responsive documents. In short, the procedure must be sufficiently transparent to permit all parties to have reasonable confidence in the results. Confidence in the process can be instilled by: permitting the requesting party to participate, along with the producing party, in training the predictive coding software that is selected; or providing access to the control set of documents used to train the software whether relevant or not (with privileged information redacted or withheld). Id. at * The procedure also should be validated, preferably with statistical sampling (rather than random sampling) to ensure that there is a scientific basis that the predictive coding software is identifying relevant documents at a sufficiently high rate. 1 Only a few other courts have addressed predictive coding since the Da Silva Moore decision. In Global Aerospace Inc. v. Landow Aviation, L.P. dba Dulles Jet Center, Case No. CL 6140 et al, (Va. Cir. Ct, Loudoun Cty. April 23, 2012), the court entered an order allowing defendants to proceed with the use of predictive coding for purposes of processing and producing ESI, over plaintiff s objection. In National Day Laborer Organizing Network v. United States Immigration & Customs Enforcement Agency, 877 F. Supp. 2d 87, (S.D.N.Y. 2012), the court indicated that it would allow the parties to agree to use predictive coding. In Kleen Prods. v. Packaging Corp. of America, No. [ ], 2012 WL (N.D. Ill., Sept. 28, 2012), plaintiffs initially asked the court to order defendants to use predictive coding to re-do prior productions and make future productions, but later withdrew their request. Id. at *5. Finally, in the (In re Actos (pioglitazone) Products Liability Litigation MDL, No. 6:11-md-2299, Judge Rebecca Doherty entered an order on July 27, 2012, that sets forth a framework for a Search Methodology Proof of Concept to examine the viability of using predictive cod- 410 Product Liability April 2013

7 ing for production. See Case Management Order: Protocol Relating to the Production of Electronically Stored Information ( ESI ), available at UPLOADS/11-md-2299.esi. pdf (last accessed Jan. 23, 2013). Based on this order, three lawyers from each side collaboratively trained the software by jointly reviewing a control set of documents. Various procedures have been implemented subsequently to try to promote recall and precision in the software s algorithm. As of the date of this article, the parties are still determining the viability of using predictive coding going forward. * * * The driving force for predictive coding is the cost of discovery. The goal for any review method is to result in higher recall and higher precision than another review method, at a cost proportionate to the value of the case. Da Silva Moore, 2012 WL , at *9. Proportionality is addressed in Federal Rule of Civil Procedure 26(b)(2)(C), which requires that the scope of discovery be appropriate to the litigation. Moreover, courts have an obligation to balance the utility against the costs of discovery. Id., at *12 (quoting U.S. ex rel. McBride v. Halliburton Co., 272 F.R.D. 235, 240 (D.D.C. 2011). Whether predictive coding leads to production results that are more accurate and less costly than the traditional process, however, remains to be seen. III. Take-Away Points In order for predictive coding to be viable, the parties should consider agreeing on the following: number and identity of document custodians; source of electronic data to be reviewed and produced (e.g., current , ESI from hard drive); quality control measures; and process transparency to demonstrate reliability of the results. Ultimately, whether predictive coding is a friend or foe in product liability mass tort cases will depend upon how accurate the procedure is proven to be in these type of cases, and whether it can be shown to save time and money. Endnote 1 Magistrate Judge Peck ruled that Daubert does not apply to the results of computer-assisted review, because Daubert and Rule 702 deal with admissibility of evidence, not discovery. Da Silva Moore, 2012 WL , at *8. E-Discovery in Mass Torts: Predictive Coding Friend or Foe? Knutson 411

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