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Predictive Coding Order Modified
A recent landmark decision in which the Court of Chancery ordered both sides to engage in predictive coding by using a mutually agreed upon vendor has been modified. The new order allows plaintiffs in the EORHB v. HOA matter to review their documents using traditional methods. They will also be allowed to choose a separate vendor than defendants.
The original order by Vice Chancellor Laster had ordered both parties to use predictive coding unless they could show good cause for why they would not benefit from using the technology. EORHB found that its document collection was relatively small. It is now generally accepted that the benefits of predictive coding are directly proportional to the size of the collection. In EORHB’s situation, the benefits of using predictive coding would have been outweighed by the costs due to its small collection. The Vice Chancellor thus approved the proposed order that was agreed to by both parties that the plaintiffs did not need to use predictive coding.
What does this new order mean? The idea that predictive coding is the panacea to all client costs associated with eDiscovery review has been overstated over the past few years. Predictive coding is a powerful tool, and one that should be employed in appropriate situations. Those include scenarios in which the document collection is quite large. It is not a one size fits all solution. It also demonstrates that more often than not, one party is faced with a much more significant eDiscovery burden than the other party.