A party wishing to use predictive coding may seek the other side’s agreement through an agreed protocol, endorsed by the court, that describes how it will conduct predictive coding. Key topics to address include the following:
- how to identify and gather the universe of documents for analysis (including whether and when to use keyword filtering);
- how exemplars of relevant and irrelevant documents will be identified and fed to the software;
- how to set accuracy benchmarks (such as recall and precision) and how to verify those benchmarks;
- whether to permit the clawback of inadvertently produced privileged documents without waiver (in conjunction with Fed. R. Evid. 502) and
- what role, if any, the requesting party will have in reviewing the training data.