Mandating Use of Predictive Coding in Electronic Discovery: An Ill-Advised Judicial Intrusion

34 Pages Posted: 6 Apr 2013 Last revised: 10 Apr 2013

See all articles by Tonia Hap Murphy

Tonia Hap Murphy

University of Notre Dame-Mendoza College of Business

Date Written: April 3, 2013

Abstract

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.

Keywords: predictive coding, ESI, keyword searching, electronic discovery, FRCP, adversarial system, attorney client privilege

JEL Classification: K40, K41, K20, K21

Suggested Citation

Murphy, Tonia Hap, Mandating Use of Predictive Coding in Electronic Discovery: An Ill-Advised Judicial Intrusion (April 3, 2013). American Business Law Journal, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2244444

Tonia Hap Murphy (Contact Author)

University of Notre Dame-Mendoza College of Business ( email )

Notre Dame, IN 46556-5646
United States

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