For years, legal software companies have been trying to figure out how to help lawyers quickly and efficiently find the needle in the discovery haystack.
First there was concept searching and review, then early data assessment tools and now predictive coding. Despite all of these advances, use of these tools is still not standard practice. It may be that we lawyers do not trust artificial intelligence to find our hot docs. Or, it could be that the courts have not yet accepted reliance on such technology and lawyers are too risk averse to attempt the argument. I would argue, however, that the courts are open to use of such technology and that one can make a winning argument that the use of such technology is warranted.
In order to make a winning argument, you would have to show that your reliance on technology was reasonable. One component of your argument would be that it was prohibitively expensive to approach the data in the traditional way. Not only can you build this argument by referencing your own data (i.e. relying on a quote from vendors for processing and review) but you can also point to public data. For example, a recent NY Times article referenced a case where a corporation spent $2.2 million on 6 million documents in discovery. You can then compare and contrast the traditional method against your technology-driven alternative.
A second component to your argument would be to show that your chosen software produces the desired result. This is where you would have to rely on the software company to provide you with empirical evidence. As an example, you could provide data comparing the accuracy of coding decisions made by predictive coding software versus human reviewers. Ask your vendor to send you such data before you make the decision to use the software. That way, you are prepared to make the argument.
I believe Courts are open to using technology, especially with empirical evidence showing its accuracy. In fact,at least one Judge has shown support for studies investigating the accuracy of ESI software. Victor Stanley,Inc. v. Creative Pipe, Inc., 250 F.R.D. 251, 261 n. 10 (D.Md. 2008) (“[T]here is room for optimism that as search and information retrieval methodologies are studied and tested, this will result in identifying those that are most effective and least expensive to employ for a variety of ESI discovery tasks.”). Just remember that the Judge needs you to educate him or her about the product so you should be sure to know the product yourself or know whom to call for such information!
Note that everything in this blog post is my own commentary and should not, in any way, be construed as legal advice or a guarantee of a specific result.