Predictive coding, or predictive technology, is the use of computer-assisted review software to help determine the relevance of documents to be potentially used in a legal case. It wasn’t until March that a judge first ruled that predictive coding could be used in a case.

Now, we’ve gone one step further, with a judge actually *requiring* two parties — one of which is Hooters — to use predictive coding in their case. Well, at least, Strongly Suggesting.

“Vice Chancellor J. Travis Laster in Delaware Chancery Court has made e-discovery history, again, with a surprise bench order requiring both sides to use predictive coding and to use the same vendor,” writes Ralph Losey for the E-Discovery Team blog. “This appears to be the first time a judge has required both sides of a dispute to use predictive coding when neither has asked for it. It may also be the first time a judge has ordered parties to use the same vendor.” If the parties could not agree on a vendor, the judge continued, he would select one.

(What’s the case about? It’s kind of hard to tell. “A complex multimillion dollar commercial indemnity dispute involving the sale of Hooters, a very well-known restaurant, famous for its chicken and wings, beer, and other things,” Losey writes.)

The goal appeared to be to use the case as an example of how to save money. “The problem is that these types of indemnification claims can generate a huge amount of documents,” the judge said in his decision. “That’s why 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.”

“Predictive coding used correctly, promises to reduce costs and turn over at least as much responsive ESI and less unresponsive ESI than our current eyeballs-on-every-document approach,” agrees Karl Schieneman in E-Discovery Journal.

At this point, the two sides need to determine whether they will go along with the judge’s recommendation, or fight it using the Sedona Principles that, basically, leave it up to the participants to determine the best way to proceed. But that might be fraught. “Who wants to tell the judge to butt-out, no matter how politely you say it, or how many Sedona Principles you cite?” Losey writes. “Better to let the other side be the complainer, even if you do not much like it either. Much will depend on who has the heaviest production burden.”

The two sides might also object to the suggestion that they use the same vendor, and the judge’s motivation for suggesting that isn’t clear, Losey continues. Schieneman agrees, noting that it might be difficult to find a neutral vendor and it also isn’t clear how the software will be paid for. “There is an argument to be made that this is a well-intentioned, but possibly uneducated bench that is forcing parties to use and pay for an undefined, black box marketing label.”

Schieneman went on to write that he hopes judges don’t get too enthusiastic about predictive coding and start requiring it willy-nilly. “It could be an unintended disaster if every judge ordered the use of predictive coding,” both because of the learning curve required for legal firms and the ability for predictive coding vendors to be able to adequately support all these new potential customers, he says. “While judicial encouragement of predictive coding is great and absolutely necessary, blind encouragement could be dangerous,” he says.

Ironically, this all happens almost exactly a year after the New York Times published an article on the subject, which though it didn’t use the term “predictive coding” described the practice and its effect on the legal community. Studies have also found that computer programs are better at it than legal staff.

The “may” is important for two reasons. The first is that, due to some confusion, some people believed that Peck’s ruling, in the case of Monique Da Silva Moore, et al., Plaintiffs, v. Publicis Groupe & MSL Group, Defendents, 11 Civ. 1279 (ALC)(AJP), required the use of predictive coding, which is does not do. The second is that a different case, Kleen Products LLC v. Packaging Corporation of America, et al., still in court, does hinge on the question of requiring predictive coding.

Indeed, in the particular case to which Peck refers, the litigants agreed between themselves to use predictive coding in principle — but have been unable to agree on the details, and in fact the plaintiffs have filed an objection to Peck’s ruling, saying they are concerned that the software process is not transparent enough.

Peck’s opinion is not a surprise; last October, he wrote an article describing predictive coding and its role in e-discovery. While he uses charming phrases such as “A basic problem is that absent cooperation, the way most lawyers engage in keyword searches is, as Ralph Losey suggests, the equivalent of “Go Fish,”", one hopes he is a better judge than a prophet:

Perhaps they are looking for an opinion concluding that: “It is the opinion of this court that the use of predictive coding is a proper and acceptable means of conducting searches under the Federal Rules of Civil Procedure, and furthermore that the software provided for this purpose by [insert name of your favorite vendor] is the software of choice in this court.” If so, it will be a long wait.

Four months isn’t all that long.

Needless to say, e-discovery vendors are kvelling about the ruling, and not just because Peck uses charming phrases such as, “The Court recognizes that computer-assisted review is not a magic, Staples-Easy-Button, solution appropriate for all cases.” (Peck emphasizes that he isn’t endorsing any particular vendor.)

Clearwell, for example — recently purchased by Symantec (which had specified growth in technology-assisted review as one of its 2012 predictions) as one of the first e-discovery acquisition dominoes to fall — noted five major points about the decision:

• The Court did not order the use of predictive coding
• Computer-assisted review is not required in all cases
• The opinion should not be considered an endorsement of any particular vendors or tools
• Predictive coding technology can still be expensive
• Process and methodology are as important as the technology utilized

Organizations that have held off on implementing predictive coding now have a green light to proceed.