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US Department of Justice Collaborates with McDermott on Predictive Coding Protocol

The legal industry has, for a while, been looking for opportunities to better utilise review technology in order to manage not only the scope, but also the cost of discovery.  Following the recent negotiations between McDermott Will & Emery’s antitrust and discovery group members, and the US Department of Justice (DOJ), a new predictive coding protocol has been developed and many involved in the process of discovery can certainly gain a few handy insights from this collaboration.

Last year, Constellation Brands, a client of McDermott Will & Emery’s, came to an agreement to buy Corona’s beer business, as well as some Anheuser-Busch Inbev brands, but the deal was dependent on the DOJ’s results of their investigation into Anheuser-Busch Inbev’s purchase of Grupo Modelo, a Mexican brewer.  In a joint decision, predictive coding, also known as technology-assisted review, was used by the DOJ in its investigation.

Using kCura’s Relativity electronic data discovery software, McDermott’s team were able to review millions of documents within a two-week period, thereby being able to comply with DOJ’s information request.  The DOJ benefited as they got a high percentage of information that was specific to their analysis of the proposed merger.  The DOJ finally approved the merger in April this year.

The use of predictive coding technology in this collaboration also served to highlight lessons regarding time and costs savings, as well as other insights that will help future discovery.  The top five lessons learnt are:

1.    Spend the time to lay out the plan before plowing ahead in using technology, such as predictive coding, and resist the pressure from clients and other parties.  Careful, thoughtful planning at the outset will save time and costs in the long run.
2.    It is imperative to maintain good communications from the outset, and stay open and honest throughout the process.  The DOJ can provide detailed protocols that cover every aspect of the discovery process – what to collection, how to cull it, and the production.
3.    Don’t push the work down the line and leave it to a junior.  When using predictive coding technology, it is crucial that the decisions are taken at the right level to ensure that the right algorithms are set to garner the right data at the end of the process.  Those most familiar with the case and its relevant issues must be involved in the reviewing process.
4.    Be confident in the technology.  Despite the challenges involved in using predictive coding and other technology-assisted review software, it is important to remember the significant benefits.  McDermott and DOJ learnt three important benefits in using predictive technology:
a)    To maintain a positive, collaborative relationship between parties to aid the best conclusion.
b)    To allow the document review process to be completed in a short period of time.
c)    To keep costs and scope low, yet maintain the quality of work.
d)    Enhanced access to information via better search and analysis.
5.    Don’t ignore the potential risks.  The DOJ’s protocols will probably request more transparency from the client than they are used to providing, or willing to provide, so approach with care and understanding.  The process may potentially disclose damaging or troubling documents that would, under normal circumstances, be withheld which needs to be taken into consideration and weighed against the benefits.

Predictive coding and other technology-assisted review solutions are here to stay, and do greatly enhance the discovery process, but organisations still need to learn a lot about the process, its capabilities, its risks and best methods.  The DOJ’s protocols go a long way to moving forward and highlighting the technology’s

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