Matthew Nelson, Judicial Activism Taken to New Heights in Latest EORHB (Hooters) Predictive Coding Case

While commenting on Judge Laster’s sua sponte order of predictive coding in EORHB v. HOA Holdings, the author reminds that the predictive coding technology is far from settled and that its pitfalls are difficult to discover, let it alone to solve.

Although many proponents of predictive coding technology will see Judge Laster’s approach as an important step forward toward broader acceptance of predictive coding technology, the directive may sound alarm bells for others…Many attorneys shudder at the notion that the judiciary should choose (or at least strongly urge) the specific technology tools parties must use during discovery. The concern is based largely on the belief that many judges lack familiarity with the wide range of eDiscovery technology tools that exist today…If the court and parties decide that using predictive coding technology in EORHB makes economic sense, they must understand the importance of statistics and transparency to insure a fair playing field. The widespread belief that all predictive coding technologies surpass the accuracy of human review is a pervasive misperception that continues to drive confusion in the industry. The assumption is false not only because these tools must be used correctly to yield reliable results, but because the underlying statistical methodology applied by the tools must also be sound for the tools to work properly and exceed the accuracy of human review.”


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Related document: Transcript of Oral Argument, EORHB v. HOA Holdings, LLC, C.A. No. 7409-VCL (Del. Ch. Oct. 15, 2012)