An Eckert Seamans associate prepared this overview.

The Chancery Daily recently reported on the Court’s order in OSI Restaurant Partners, LLC v. United Ohana, LLC, C.A. No. 12353-CB (Del. Ch. Jan. 27, 2017) (Order), requiring the parties to use predictive coding to assist the plaintiff in expeditiously producing responsive documents.

As is often the case, the OSI parties were faced with sorting through voluminous documents during the discovery phase of litigation.  The plaintiff had belatedly produced a large volume of documents without adequately reviewing for relevancy and confidentiality.  As a remedy in connection with the defendant’s motion to compel, the Court ordered use of predictive coding, which the parties had suggested, to ascertain relevancy.

It was apparently relayed to the Court that no party in Delaware had yet used predictive coding, so the parties would be the first to go through the process.  Not so.  However, the parties would need to undergo training and extensive collaboration before making use of this technology.

Contrary to the belief that the use of predictive coding is a rarity in Delaware, at least some firms, including Eckert Seamans, have been using this discovery aid for quite some time.  Indeed, our firm has been using this tool (also called computer or technology assisted review) to help sort through hundreds of thousands of documents with accuracy, in far less time, and resulting in less cost to our clients.  A 2012 decision where Vice Chancellor Laster suggested the use of computer assisted review was covered on this blog here.

Technological advances bring opportunities to better serve our clients.  BNA Bloomberg published an article late last year regarding the benefits of technology assisted review in its Digital Discovery & e-Evidence section here.  As discussed by the article, predictive coding, a new but not unheard of technology, can help attorneys to provide more efficient and quality representation to their clients.