PredictiveCoding.com
 

A comprehensive database of legal cases pertaining to Predictive Coding

     

Predictive Coding

Predictive Coding (also known as Technology-Assisted Review [TAR] or Computer-Assisted Review [CAR]) is the process of using a machine-learning algorithm to help lawyers review, analyze, and identify relevant content within large document volumes for litigation.  This focused database collects and organizes all of the published court orders that bear on Predictive Coding in the United States, United Kingdom, Ireland, and Australia. Model stipulations and orders are available here and here.

OpenText Predictive Coding
 

Case name Date Jurisdiction Judge Primary Issue Code Secondary Issue Code Key Holding
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Dynamo Holdings Ltd. v. Commissioner, 143 T.C. 183 (2014) 9/17/14 Tax Court Ronald Buch Defensibility Protocol Approving Plaintiff's use of predictive coding to ensure that privileged or confidential information is not disclosed, and observing that parties do not need to ask for permission to use PC.
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Order Denying Mot. Compel, Dynamo Holdings Ltd. v. Commissioner, No. 2685-11 (T.C. 2016) 7/13/16 Tax Court Ronald Buch Defensibility Protocol Approving the predictive coding process used and denying a motion to compel.
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Brown v. BCA Trading, [2016] EWHC 1464 (Ch) 996 5/17/16 High Court Of Justice Chancery Division Mr. Registrar Jones Defensibility Costs "I reach the conclusion based on cost that predictive coding must be the way forward."
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Pyrrho Investments v. MWB Property, [2016] EWHC 256 (Ch) 38 2/16/16 High Court Of Justice Chancery Division Master Matthews Defensibility Protocol "Accordingly, I considered that the present was a suitable case in which to use, and that it would promote the overriding objective set out in Part 1 of the CPR if I approved the use of, predictive coding software, and I therefore did so. Whether it would be right for approval to be given in other cases will, of course, depend upon the particular circumstances obtaining in them."
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Burd v. Ford Motor Co., No. 3:13-CV-20976, 2015 U.S. Dist. LEXIS 88518 (S.D.W.V. July 8, 2015) 7/8/15 West Virginia - Southern District Cheryl A. Eifert Defensibility Protocol "[T]he parties are ORDERED to involve their IT experts and to consider other methods of searching such as predictive coding; perhaps, making use of the publications of the Sedona Conference."
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Boardley v. Household Finance Corp., 8:12-CV-3009, 2015 U.S. Dist. LEXIS 70098 (D. Md. June 1, 2015) 6/1/15 Maryland - Federal District Paul W. Grimm Cooperation Protocol "Parties requesting ESI discovery and parties responding to such requests are expected to cooperate in the development of search methodology and criteria to achieve proportionality in ESI discovery, including appropriate use of computer-assisted search methodology, such as Technology Assisted Review, which employs advanced analytical software applications that can screen for relevant, privileged, or protected information in ways that are more accurate than manual review and involve far less expense."
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Malone v. Kantner Ingredients, No. 4:12-CV-3190, 2015 U.S. Dist. LEXIS 41951 (D. Neb. Mar. 31, 2015) 3/31/15 Nebraska - Federal District Cheryl R. Zwart Defensibility Protocol "Predictive coding is now promoted (and gaining acceptance) as not only a more efficient and cost effective method of ESI review, but a more accurate one."
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Rio Tinto Plc v. Vale S.A., 306 F.R.D. 125 (S.D.N.Y. 2015) 3/2/15 New York - Southern District Andrew J. Peck Defensibility Protocol "In the three years since Da Silva Moore, the case law has developed to the point that it is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it."
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Order Appointing Special Master, Rio Tinto Plc v. Vale S.A., No.14-CV-3042, (S.D.N.Y. July 15, 2015) 7/15/15 New York - Southern District Andrew J. Peck Special Master Protocol
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Memo Endorsed Order, Rio Tinto Plc v. Vale S.A., No.14-CV-3042, (S.D.N.Y. Aug. 13, 2015) 8/13/15 New York - Southern District Andrew J. Peck Cooperation Costs
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Connecticut General Life Insurance Co. v. Health Diagnostic Laboratory, Inc., No. 14-CV-01519, 2015 WL 471720 (D. Conn. Jan. 28, 2015) 1/28/15 Connecticut - Federal District Victor A. Bolden Defensibility Seed Set disclosure "It is the producing party's right to determine the best method of search and review and how it will comply with Rule 26. To the extent that a Party chooses to search and review using a technology or methodology other than search terms (including, for instance, predictive coding), that Party shall disclose its intent to use that technology and the name of the review tool. However, the Party need not share the intricacies of said methodology unless and until there is a good faith allegation of a violation of Rule 26."
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Chevron Corp. v. Snaider, No. 1:14-cv-01354, 2015 U.S. Dist. LEXIS 4939 (D. Colo. Jan. 15, 2015) 1/15/15 Colorado - Federal District Kathleen M. Tafoya Defensibility Costs "At the hearing, Snaider claimed that document review would take approximately 300 hours. However, Snaider does not address the likelihood that in a case such as this computer-assisted review would no doubt be invoked, and while that is costly, it is much more efficient than assigning individuals to review a large volume of paperwork."
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Chevron Corp. v. Donzinger, No. 11cv0691, 2013 U.S. Dist. LEXIS 36353 (S.D.N.Y. Mar. 15, 2013) 3/14/13 New York - Southern District Lewis Kaplan Protocol Costs Urging the parties to analyze "whether and to what extent predictive coding could 'reduce the burden and effort' required to comply with the Subpoena."
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Green v. Am. Modern Home Ins. Co., No 1:14-CV-04074, 2014 U.S. Dist. LEXIS 165956 (W.D. Ark. Nov. 24, 2014) 11/24/14 Arkansas - Western District Susan O. Hickey Defensibility Protocol "In lieu of identifying responsive ESI using the search terms and custodians/electronic systems . . . a party may use a technology assisted review platform to identify potentially relevant documents and ESI."
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Smilovits v. First Solar Inc., No 2:12-CV-00555 (D. Ariz. Oct. 20, 2014) 11/20/14 Arizona - Federal District David G. Campbell Protocol Defensibility "The Court cannot accept the proposition that Defendants‰ŰŞ use of predictive coding effectively confines Plaintiffs‰ŰŞ document discovery to initial requests for production."
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Argument Matrix, Smilovits v. First Solar Inc., No 2:12-CV-00555, (D. Ariz. Oct. 20, 2014) 10/21/14 Arizona - Federal District David G. Campbell n/a n/a
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Good v. American Water Works Co., No. 2:14-CV-01374, 2014 U.S. Dist. LEXIS 154788 (S.D.W. Va. Oct. 29, 2014) 10/29/14 Virginia - Western District John T. Copenhaver, Jr. Defensibility Privilege Encouraging the incorporation and employment of computer-assisted privilege review in a 502(d) order.
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Arnett v. Bank of America, No. 3:11-CV-1372, 2014 U.S. Dist. LEXIS 130903 (D. Or. Sept. 18, 2014) 9/18/14 Oregon - Federal District Michael H. Simon Costs Protocol Noting that class counsel "produced more than 1.1 million documents comprising more than 4 million pages . . . using search terms, predictive coding, and manual review methods." The court went on to award class counsel $7.750 million in attorney fees and $736,294.42 for litigation costs (including discovery).
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United States v. Univ. of Neb. at Kearny, No. 4:11-cv-3209, 2014 WL 4215381 (D. Neb. Aug. 25, 2014) 8/25/14 Nebraska - Federal District Cheryl R. Zwart Costs Protocol After Defendant used predictive coding to produce the first round of documents, the opposition made a motion to compel additional documents. The defendant argued for cost-shifting for additional production, but the court held that the MTC was facially over-broad and so did not reach the issue of cost-shifting.
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In re Bridgepoint Educ., Inc., No. 12-cv-1737, 2014 U.S. Dist. LEXIS 108505 (S.D. Cal. Aug. 6, 2014) 8/6/14 California - Southern District Jill L. Burkhardt Costs Protocol Discussing the cost proportionality of predictive coding and work flows, including adding new documents to a stabilized system.
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Bridgestone v. IBM, No. 3:13cv1196, 2014 U.S. Dist. LEXIS 142525 (M.D. Tenn. July 22, 2014) 7/22/14 Tennesee - Middle District Joe Brown Defensibility Protocol Approving the combined use of keyword searches and predictive coding, and interpreting the case management order to allow the adoption of predictive coding.
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Progressive Cas. Ins. Co. v. Delaney, No. 2:11-CV-00678-LRH, 2014 U.S. Dist. LEXIS 69166 (D. Nev. July 18, 2014) 7/18/14 Nevada - Federal District Peggy Leen Protocol Defensibility Although the Court stated, "Predictive coding has emerged as a far more accurate means of producing responsive ESI in discovery. Studies show it is far more accurate than human review or keyword searches which have their own limitations," the Court denied the adoption of predictive coding where Plaintiff unilaterally implemented it without input or consultation from opposing counsel.
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Civil Minutes, Indep. Living Ctr. of S. Cal. v. City of Los Angeles, No. 2:12-CV-00551 (C.D. Cal. June 26, 2014) 6/26/14 California - Central District Patrick Walsh Compelling Use Costs Ordering the defendant to use predictive coding to review 2 million documents and ordering the plaintiff to pay for 50% of the quality assurance costs if they insist on QC.
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United States v. Exxonmobil Pipeline Co., No. 4:13-CV-00355, 2014 U.S. Dist. LEXIS 81607 (E.D. Ark. June 10, 2014) 6/10/14 Arkansas - Eastern District Kristine G. Baker Protocol Defensibility Defendants suggested the use of predictive coding to ease the burden of production and meet their production deadline, while opposing party did not agree, they did not request the Court to resolve the dispute.
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F.D.I.C. v. Bowden, No. 4:13-CV-245, 2014 U.S. Dist. LEXIS 77890 (S.D. Ga. June 6, 2014) 6/6/14 Georgia - Southern District George Smith Compelling Use Defensibility Ordering parties to "consider the use of predictive coding."
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In re Domestic Drywall Antitrust Litig., 88 Fed. R. Serv. 3d 966 (E.D. Pa. 2014) 5/12/14 Pennsylvania - Eastern District Baylson Defensibility Protocol Suggesting that discovery could benefit from "more sophisticated methodologies" such as predictive coding.
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Aurora Coop. Elevator Co. v. Aventine Renewable Energy, No. 4:12-CV-230 (D. Neb. Mar. 10, 2014) 3/10/14 Nebraska - Federal District Cheryl R. Zwart Protocol Defensibility Court ordered parties to "consult with a computer forensic expert to create search protocols, including predictive coding as needed, for a computerized review of the parties' electronic records."
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Fed. Hous. Fin. Agency v. HSBC N. Am. Holdings Inc., No. 11-CV-6189 DLC, 2014 U.S. Dist. LEXIS 19156 (S.D.N.Y. Feb. 14, 2014) 2/14/14 New York - Southern District Denise Cote Defensibility Protocol Approving the use of predictive coding over objections by opposing counsel.
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The New Mexico State Inv. Council v. Bland, No. D-101-cv-2011-01534, 2014 WL 772860 (N.M. Dist. Feb. 12, 2014) 2/12/14 New Mexico - Federal District Sarah M. Singleton Defensibility Protocol "In reviewing documents, Day Pitney implemented various advanced machine learning tools such as predictive coding, concept grouping, near-duplication detection and e-mail threading. These tools . . . enabled the reviewers on the document analysis teams to work more efficiently with the documents and identify potentially relevant information with greater accuracy than the standard linear review."
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Deutsche Bank Nat. Trust Co. v. Decision One Mortg. Co., No. 13 L 5823, 2014 WL 764707 (Ill. Cir. Ct. Jan. 28, 2014) 1/28/14 Illinois - Circuit Court Raymond W. Mitchell Defensibility Cooperation "If the parties agree that predictive coding would be appropriate in this case, they are encouraged to employ that tool."
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In re Biomet M2A Magnum Hip Implant Products Liab. Litig. (In re Biomet I), No. 3:12-MD-2391, 2013 WL 1729682 (N.D. Ind. Apr. 18, 2013) 4/23/13 Indiana - Northern District Robert L.Miller Defensibility Protocol Approving the use of predictive coding on top of keywords and refusing to order a party to "do-over" their keyword searches with predictive coding.
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In re Biomet M2A Magnum Hip Implant Products Liab. Litig. (In re Biomet II), No. 3:12-MD-2391, 2013 WL 6405156 (N.D. Ind. Aug. 21, 2013) 8/21/13 Indiana - Northern District Robert L.Miller Protocol Cooperation Refusing to order the producing party to identify seed set documents and how they were coded.
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In re Biomet M2A Magnum Hip Implant Products Liab. Litig. (In re Biomet III), No. 3:12-MD-2391 (N.D. Ind. Dec. 10, 2013) 12/10/13 Indiana - Northern District Robert L.Miller Special master Protocol Refusing to appoint a special master to handle discovery challenges related to predictive coding.
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Hinterberger v. Catholic Health Sys., Inc., No. 08-CV-380, 2013 U.S. Dist. LEXIS 73141 (W.D.N.Y. May 21, 2013) 5/21/13 New York - Western District William M. Skretny Defensibility Protocol Approving the use of predictive coding and refusing to disqualify shared eDiscovery vendor/consultant.
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Gordon v. Kaleida Health, No. 08-CV-378S, 2013 U.S. Dist. LEXIS 73141 (W.D.N.Y. May 21, 2013) 5/21/13 New York - Western District Leslie G. Foschio Defensibility Protocol Hinterberger related action. Approving the use of predictive coding on top of keywords, and approving the use, by both parties, of a shared ESI consultant (D4 discovery) and declining to order production of seed set methodology.
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Edwards v. Nat'l Milk Producers Federation, No. 3:11-cv-04766 (N.D. Cal., Apr. 17, 2013) 4/16/13 California - Northern District Jeffrey S. White Defensibility Protocol Approving the use of predictive coding and the proposed protocol.
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Cambridge Place Inv. Mgmt, Inc. v. Morgan Stanley, No. SUCV2010-2741 (Mass. Super. Ct. Suffolk Mar. 21, 2013) 3/21/13 Massachusetts - Superior Court Thomas P. Billings Defensibility Protocol Approving the use of predictive coding over objections by opposing counsel.
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Harris v. Subcontracting Concepts, LLC, No. 1:12-MC-82 DNH, 2013 WL 951336 (N.D.N.Y. Mar. 11, 2013) 3/11/13 New York - Northern District Randolph R. Treece Defensibility Protocol "Although this Court may not share the technological sophistication of Mr. Wise, I certainly know that the amount of time, cost, and effort expended to produce these records from the computer is significantly less than by hand. With the advent of software, predictive coding, spreadsheets, and similar advances, the time and cost to produce large reams of documents can be dramatically reduced. Further, suggesting to DOL to accept the production of these documents in either native format, or through a zip file, or some other electronic transaction should minimize SCI LLC's anxiety. Hence, the Court is more convinced than ever that SCI LLC is not subject to an overwhelming and incomprehensible burden."
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EORHB v. HOA Holdings, No. 7409-VCL, 2012 WL 4896670 (Del. Ch. Ct. Oct. 15, 2012) 10/15/12 Delaware - Chancery Court J. Travis Laster Defensibility Protocol "This seems to me to be an ideal non-expedited case in which the parties would benefit from using predictive coding. I would like you all, if you do not want to use predictive coding, to show cause why this is not a case where predictive coding is the way to go."
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In re Actos: (Pioglitazone) Prod. Liab. Litig., No. 6:11-MD-2299, 2012 WL 7861249 (W.D. La. July 27, 2012) 7/27/12 Louisiana - Western District Rebecca Doherty Defensibility Protocol Approving the use of predictive coding and discussing workflows.
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Kleen Products v. Packaging Corp. of Am., No. 10 C 5711, 2012 U.S. Dist. LEXIS 139632 (N.D. Ill. Aug. 21, 2012) 8/21/12 Illinois - Northern District Nan Nolan Protocol Cooperation Declining to order a party to "do-over" production with predictive coding.
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Nat'l Day Laborer Org. Network v. U.S. Immigration & Customs Enforcement Agency, 877 F. Supp. 2d 87 (S.D.N.Y. 2012) 7/13/12 New York - Southern District Shira A. Scheindlin Defensibility Protocol "Parties can (and frequently should) rely on . . . [predictive coding] to identify responsive documents."
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Global Aerospace v. Landow Aviation, No. CL 61040, 2012 WL 1431215 (Vir. Cir. Ct. Apr. 23, 2012) 4/23/12 Virginia - Circuit Court James H. Chamblin Defensibility Protocol Endorsing the use of predictive coding over objections by opposing counsel.
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Da Silva Moore v. Publicis Group, 287 F.R.D. 182 (S.D.N.Y. 2012) 2/24/12 New York - Southern District Andrew J.Peck Defensibility Protocol Approving the use of predictive coding.
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Hyles v. New York City, No. 1:10-CV-03119 (S.D.N.Y. Aug. 1, 2016) 8/1/16 New York - Southern District Andrew J. Peck Compelling use Defensibility "The Court would have liked the City to use TAR in this case. But the Court cannot, and will not, force the City to do so."
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In re Bair Hugger Forced Air Warming Products Liab. Litig., No. 0:15-MD-02666 (D. Mn. July 8, 2016) 7/8/16 Minnesota - Federal District Joan N. Ericksen Defensibility Protocol Order and protocol approving the use of predictive coding and describing workflow.
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B&R Supermarket v. Visa, No. 3:16-CV-01150 (N.D. Cal. Aug. 29, 2016) 8/29/16 California - Northern District Defensibility Protocol "To reduce the costs and burdens of document review and production, any party may use predictive coding or technology-assisted review for the purpose of culling the documents to be reviewed or produced. Any party using predictive coding or technology-assisted review ('TAR') to cull the documents to be reviewed agrees that as early as reasonably practicable (and in any event prior to using such tools) it will disclose to the opposing parties the type of technology it will be using and a general description of the TAR methodology that will be used."
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In re Viagra, No. 16-MD-02691 (N.D. Cal. Oct. 14, 2016) 10/14/16 California - Northern District Sallie Kim Compelling use Protocol "Even if predictive coding were a more efficient and better method, which Pfizer disputes, it is not clear on what basis the Court could compel Pfizer to use a particular form of ESI, especially in the absence of any evidence that Pfizer's preferred method would produce, or has produced, insufficient discovery responses. Therefore, the Court HEREBY DENIES Plaintiff's motion."
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Money Max v QBE, [2016] Federal Court of Australia VID 5132015 (Unreported, J Murphy, 7 Nov. 2016) 11/7/16 Federal Court of Australia - Victoria Justice Murphy Defensibility Protocol Approving the use of TAR and a protocol with specific disclosure obligations.
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In re 1-800 Contacts, Inc., F.T.C (Nov. 17, 2016) 11/17/16 FTC Protocol Cooperation Motion with a proposed order including a TAR disclosure protocol.
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McConnell Dowell Constructors Pty. v Santam, Ltd. [2016] VSC 734 (2 Dec. 2016) (Austl.) 12/2/16 Supreme Court of Victoria (Australia) Justice Vickery Defensibility Protocol Approving the use of TAR on a corpus of 1.4-4 million documents with a mutually agreed-upon protocol
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United States v Educ. Mgmt LLC, No. 2:07-cv-00461, 2013 WL 12140442 (W.D. Pa. Nov. 24, 2013) 11/23/13 Pennsylvania - Western District Terrence F. McVerry Defensibility Protocol "Predictive coding appears to offer a reasonable means by which Defendants may enhance the efficiency of their discovery efforts."
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Davine et al v. The Golub Corp., No. 3:14-cv-30136 (D. Mass. Feb. 8, 2017) 2/8/17 Massachusetts - Federal District Katherine A. Robertson Defensibility Protocol "Defendants are entitled to rely on their predictive coding model for purposes of identifying relevant responsive documents, and may cease their review of the documents identified as possibly relevant when they made a good faith determination that the burden of continuing the review outweighs the benefit in terms of identifying relevant documents."
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OSI Rest. Partners, LLC v. United Ohana, LLC, C.A. No. 12353-CB, (Del. Ch. Jan. 27, 2017) 1/27/17 Delaware - Chancery Andre G. Bouchard Defensibility Protocol Stipulation approving the use predictive coding.
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FCA US v. Cummins Inc., No. 2:16-cv-12883 (E.D. Mich., Mar. 28, 2017) 3/28/17 Michigan – Eastern District Avern Cohn Protocol Defensibility “Applying TAR to the universe of electronic material before any keyword search reduces the universe of electronic material is the preferred method.”
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Webb v. Exxon Mobil 5/11/17 8th Circuit Judge William Jay Riley Compelling Use Cooperation Affirming the denial of a motion to compel the use of predictive coding
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