Predictive coding to become an ethical obligation.

• Position: A TROUBLING TREND

Looking back over the reported electronic discovery opinions and notable e-discovery themes in 2012, it's clear that the big shaker and mover is technology-assisted review (TAR), or predictive coding.

"Across the entire electronic discovery reference model many notable e-discovery trends emerged in 2012, but none promises to change the status quo more than the line of opinions approving the use of technology-assisted review," said Michele Lange, director of e-discovery thought leadership and industry relations at Kroll Ontrack. "As courts in the last year progressively embraced advanced technologies, such as TAR, opinions from the bench showed increased scrutiny over procedural issues."

Indeed, the number of e-discovery procedural disputes doubled last year, while sanction cases dropped 10%, according to Kroll Ontrack's annual report on electronic discovery cases.

Howard Sklar, senior corporate counsel at Recommind Inc., observed in an article on Recommind's The Core Perspective that predictive coding has gone through three stages of adoption, each marked by legal developments.

* In the first stage, courts allowed the use of predictive coding in e-discovery.

* In the second, a dispute arose over electronic review of records because predictive coding wasn't used. Both sides eventually agreed on keyword search terms.

* In the third stage, a Delaware chancery judge required predictive coding without a request from the parties.

"In the future," Sklar contended, "we'll enter stage four: the decision by a state bar's ethics watchdog that failure to use predictive coding is ethically questionable, if not unethical. After all, purposefully using a less-efficient, less accurate, more expensive option is problematic." Stage four, he said, could happen any time given how fast we've gone through the first three stages.

Other Legal Trends of 2012

At the end of each year, Kroll Ontrack analyzes the 70 most significant state and federal judicial opinions related to the preservation, collection, review, and production of electronically stored information. In 2012, the decisions broke down into the following major issues:

* 32% of cases addressed sanctions regarding a variety of issues, such as...