The benefits of using predictive coding and Technology Assisted Review (Predictive Analytics) are well documented and understood. Most of the focus thus far has been on applying the technology for outbound document review as a part to reduce burden and costs. However, there are always at least two sides to each case.
These case studies not only tell the story of costs savings – but also the strategic value of getting to key data faster.
What about applying predictive analytics to incoming productions from the opposition? What would be different in that workflow? What are the benefits? What has experience taught us?
Finding What’s Important vs. Relevant
The major difference in reviewing production from your adversary is the concept of reviewing for importance vs relevance. Reviewing for outbound production is all about providing documents that are relevant to the document request while also reviewing for privilege. Inbound production, however is not normally reviewed for anything other than “what can I find in the produced documents from the opposition that will help me win my case.”
Don’t be fooled into thinking your opposing counsel will make your job easier by reviewing for relevancy before sending you their production. They certainly are not going to prioritize it in order of importance to help you win.
Consider this. You’re involved in a matter where both sides have agreed to a broad set of search terms as a means to limit the scope of production. You’ve applied search terms to your set of documents, reviewed for privileged and some level for relevance for production. There is a possibility your opponent did the same, but it is also possible they reviewed for privilege, and stopped there. A production like this is commonly referred to as a “document dump” and likely contains a large percentage of false positive documents, making it much harder for you to find the relevant information. (False positives are documents where at least one of the key terms is present, but the meaning of the hit term within that document is not relevant to the matter.)
Reviewing document productions from opposing counsel is all about identifying the documents that are important to support your side of the case as quickly as possible – predictive analytics is one of the most efficient ways to make that happen. Once the system knows what is important to you, it will prioritize the incoming production in order of importance based on your input.
Are you anticipating a large production from opposing counsel? Don’t be fooled into thinking your opposing counsel will make your job easier by reviewing for relevancy before sending you their production. They certainly are not going to prioritize it in order of importance to help you win.
The next time you anticipate your opposing party is likely to provide a large production (over 50,000 documents is a good metric), and since there is such little risk involved, use predictive analytics to prioritize upon receipt. You (and your client) will be glad you did.
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