KMK Law Complex Litigation Blog

In a case featuring a heated pretrial-discovery battle between heavyweights, a U.S. District Court Magistrate Judge in Tennessee recently approved the use of predictive coding in reviewing over two million documents for responsiveness.  Noting that he was “allowing Plaintiff to switch horses in midstream,” the Magistrate Judge in Bridgestone Americas, Inc. v. International Business Machines Corp., 2014 BL 217053, No. 3:13-cv-01196 (M. D. Tenn., 7/22/14), permitted “Plaintiff to use predictive coding on the documents that they have previously identified, based on search terms Defendant provided.”  Endorsing the use of predictive coding, the Magistrate Judge reasoned,

Predictive coding is a rapidly developing field in which the Sedona Conference has devoted a good deal of time and effort to, and has provided various best practices suggestions. Magistrate Judge Peck has written an excellent article on the subject and has issued opinions concerning predictive coding. Certainly, this Magistrate Judge could try to write an extensive opinion, going into various cases which have allowed and denied predictive coding. In the final analysis, the uses of predictive coding is a judgment call, hopefully keeping in mind the exhortation of Rule 26 that discovery be tailored by the court to be as efficient and cost-effective as possible. In this case, we are talking about millions of documents to be reviewed with costs likewise in the millions. There is no single, simple, correct solution possible under these circumstances.

In challenging Bridgestone’s proposed use of predictive coding, IBM described it as being “an unwarranted change in the original case management order” and “unfair to use predictive coding after an initial screening has been done with search terms.”  The Magistrate Judge succinctly overruled those objections, referring to IBM as “a sophisticated user of advanced methods for integrating and reviewing large amounts of data,” even though IBM presently is “not offering predictive coding as part of its products.”