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legal issues. First, does the use of this technology meet counsel's obligation to conduct a reasonable and defensible search for responsive documents under applicable discovery rules? Second, can counsel safeguard a client's solicitor- client privilege when a privileged docu- ment is disclosed? To date, although some judges in the United States have spoken positively of predictive coding, its use has not yet been tested through a defensibility motion. Arguably, the use of technologies, including predictive coding, is encour- aged within the Sedona Canada Prin- ciples. In particular, Principle 7 states that "[a] party may satisfy its obligation to preserve, collect, review, and pro- duce electronically stored information in good faith by using electronic tools and processes such as data sampling, search- ing, or by using selection criteria to collect potentially relevant information." Perfection is not required in the e-discovery process or in document review. The operative standard is rea- sonableness, which requires that coun- sel implement a document review sys- tem (regardless of whether predictive coding is used) that relies on reasonable steps to make disclosure of relevant documents and prevent disclosure of privileged ones. Manual review of documents will not always meet this standard; neither will predictive cod- ing. Some of the very traits that appear to make predictive coding unreason- able actually make it reasonable. For example, it makes document review more efficient by exposing the human reviewer only to those documents that have been algorithmically identified based on the specifications input by the lawyer, but in a more powerful way than just by keyword. Assuming lawyers input criteria correctly, predictive cod- ing makes it more likely that responsive documents will be produced. Second, the iterative nature of predictive coding refines relevant subsets for review in a way that can be validated statistic- ally, both for opposing counsel and the courts. The key to validating pre- dictive coding is to establish metrics that surpass standards that previously www.CANADIAN Lawyermag.com JAN UARY 2012 25 ntitled-6 1 11-12-06 3:17 PM REASON #2 The cost made th Th clea REASON #2 st sav viings made LexCloud.ca the clear choiceoice oud. gs prevailed under past document review paradigms. Fortunately, models for these metrics already exist. As to the second legal issue, it's true the computer might get the privilege call on a document wrong; however, so too might humans. Arguably, humans are less likely to get it wrong if they are looking at an overall smaller set of documents. Remember too, that pre- dictive coding techniques help the qual- ity check process by identifying incon- sistently tagged records, allowing for a final cross-check of privilege records prior to production. Dera J. Nevin is the senior director, liti- gation support, and e-discovery counsel at McCarthy Tétrault LLP. A practising lawyer, she also oversees the firm's e-dis- covery operations and can be reached at dnevin@mccarthy.ca.