First-pass document review in litigation · Ceded (since 2012)

On 24 February 2012, Magistrate Judge Andrew Peck of the Southern District of New York approved a predictive coding protocol in Da Silva Moore v. Publicis Groupe, the first judicial acceptance of computer-assisted review in place of exhaustive reading by lawyers.

Teams of contract lawyers once read every document in a production set and coded each one for relevance and privilege. Working on data from the TREC 2009 Legal Track, Grossman and Cormack showed that technology-assisted review reached higher recall and precision than exhaustive manual review, and courts have accepted that finding since 2012. What was ceded is the first pass, the obligation to look at everything. Lawyers still negotiate the protocol, make the seed decisions the system learns from, argue proportionality with the other side, and take the privilege calls that draw sanctions when they are wrong. The work did not vanish either, because the volume of electronic evidence has grown faster than the culling.