Mandating Use of Predictive Coding in Electronic Discovery: An Ill-Advised Judicial Intrusion
Tonia Hap Murphy
University of Notre Dame-Mendoza College of Business
April 3, 2013
American Business Law Journal, Forthcoming
Courts have recently grappled with the issue of whether predictive coding is sufficiently reliable search technology to use in electronic discovery. Courts have appropriately ruled in recent cases that parties may choose to use predictive coding. Moves by courts to mandate that a party use that technology, however, are improper. Such actions by judges implicate important policy considerations that go to the heart of the American adversarial system. This paper argues that parties may have legitimate concerns that lead them to prefer keyword searching rather than predictive coding and that judges do not have sufficient reasons to depart from the traditional judicial role to intervene in parties' decisions on search technology.
Number of Pages in PDF File: 34
Keywords: predictive coding, ESI, keyword searching, electronic discovery, FRCP, adversarial system, attorney client privilege
JEL Classification: K40, K41, K20, K21Accepted Paper Series
Date posted: April 6, 2013 ; Last revised: April 10, 2013
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