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By Wendy Butler Curtis and Jeffrey W. McKenna

On October 15, 2012, Vice Chancellor J. Travis Laster of the Delaware Court of Chancery ordered the parties in EORHB, Inc., et al. v. HOA Holdings, Inc., et al., Case No. 7409-VCL (Del. Ch. Ct. Oct. 15, 2012) to utilize predictive coding technology for their document review and productions or else show cause why the use of predictive coding was not appropriate. (See 10/15/2012 Tr. at pp. 66-67.)

The court ordered the parties to locate a single eDiscovery provider that had the capability to separately house documents collected by both sides. Should the parties not be able to agree on a single provider, the court asked that each side submit names of its preferred vendors so that the court could select one. In issuing this order, the court cited a desire to spare the parties from spending hours manually reviewing documents.　

Below is an excerpt from the hearing:

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. I would like you all to talk about a single discovery provider that could be used to warehouse both sides' documents to be your single vendor. Pick one of these wonderful discovery super powers that is able to maintain the integrity of both side's documents and insure that no one can access the other side's information. If you cannot agree on a suitable discovery vendor, you can submit names to me and I will pick one for you . . . I would really encourage you all, instead of burning lots of hours with people reviewing, it seems to me this is the type of non-expedited case where we could all benefit from some new technology use. (Id.)

Sophisticated and unsophisticated litigants alike shudder at the thought of courts mandating specific discovery practices or selecting vendors. Whether on motion or sua sponte, such decisions by courts are contrary to the well established principle that a responding party is best situated to evaluate the procedures, methodologies and technologies for collecting, searching and producing its own electronically stored information¹ and fail to account for company investments in internal tools, preferred vendor relationships or company-specific and unique data requirements.

For those who do not know, predictive coding, or automated review as it is sometimes known, is an evolving technology that provides litigants with a computer-assisted alternative to manual review of large document sets. Although there are numerous manifestations of the technology, nearly all involve a team of attorneys manually reviewing a small sampling of documents to "train" the computer how to code the bulk of the documents at issue. While the use of predictive coding, when effectively deployed and not subject to motion practice, may reduce the cost and increase the speed of review, and has been, and continues to be, successfully used by our Global Operations Center Discovery Analytics & Review Services team, it is not a good fit for every case. In fact, until quite recently, very few courts had addressed the proposition of predictive coding, making Vice Chancellor Laster’s sua sponte ruling all the more surprising. For a more detailed discussion of predictive coding, please see our recent client alert The Trend Towards Greater Adoption of Predictive Coding: the Good, the Bad, and the Ugly (Sept. 7, 2012).