PREDICTIVE CODING

ADOPTING AND ADAPTING ARTIFICIAL INTELLIGENCE IN CIVIL LITIGATION

Abstract

This paper examines how predictive coding, an artificial intelligence (AI) technology, can effectively and efficiently complement the work of lawyers in the area of electronic discovery document review in civil litigation. It begins with a general overview of AI, and how machine learning can be used to automate the document review process in civil litigation. It then proceeds to a comprehensive overview of predictive coding technology and a discussion of legal issues related to the use of predictive coding technology in civil litigation. The legal issues are whether the use of artificial intelligence technology (as opposed to human intelligence) in document review complies with the rules of the court relating to documentary disclosure; and whether litigation privilege applies to seed sets (or training sets) used in training the predictive coding algorithm. Adopting a comparative law methodology, the paper seeks to address these issues.

The paper concludes with a brief consideration of legal professionalism issues arising from the adoption of predictive coding technology in civil litigation in the context of Rule 3.1 of the Model Code of Professional Conduct dealing with competency. The paper argues that successful adoption of AI technology in civil litigation will extend the lawyer’s duty of competence to include knowledge of the relevant legal technology.