This paper examines the impact of the most recent amendments to the Federal Rules of Civil Procedure on the current split between courts about whether predictive coding should be applied at the outset or to a set of keyword-culled documents. Since the new Rules explicitly implement the concept of proportionality and a new set of standards in Rule 26, I argue that applying predictive coding at the outset is more compliant with the Federal Rules of Civil Procedure. Part II will explain the difference in timing between applying predictive coding after keyword culling or prior to it, and discuss the implications of accuracy and efficiency. Part III will first discuss the split between courts regarding the two methods prior to the recent amendments to the Rules, and subsequently, it will discuss reactions by courts and scholars regarding the applicability after the amendments to the Rules. Part IV will argue that the method of applying predictive coding at the outset is more compliant with the new amendments to the Rules since it is more accurate, and it will suggest that parties and courts should begin to implement these changes. Ultimately, this proposal will improve accuracy, without jeopardizing efficiency, with the goal of achieving the just resolution of a case.
Stephanie Serhan, Calling an End to Culling: Predictive Coding and the New Federal Rules of Civil Procedure, 23 Rich. J.L. & Tech. 5 (2016).