Abstract: A December 2016 decision of the Supreme Court of Victoria and a January 2017 practice note on the use of technology in the Court have shown the Court’s acceptance of technology assisted review as an appropriate method of discovery in litigation involving a large amount of electronically stored information.

‘Technology-assisted review’ (“TAR”) describes the integration of technology into the process of human document review in discovery [1]. Predictive coding is a subset of TAR and has found use in litigation involving a large volume of electronically stored information (“ESI”).

The predictive coding process is usually applied in large scale litigation with vast ESI (e.g. exceeding 1 million documents). This is because of the time involved in manual review. For instance, assuming 1 lawyer reviews 1 million documents and takes 1 minute per document (working 8 hours a day, 5 days a week and 52 weeks a year), this would require 8 years.

The predictive coding process generally involves preparing a small sub-set of documents to feed into a coding program to allow the coding program to teach itself how to score documents for relevance. The program then provides a report, which is reviewed for accuracy by lawyers, and this review is put back into the program so it can further teach itself how to score documents for relevance. This process is repeated. Once the extent of errors determined by human review of the samples is minimised, a list of relevant documents is produced [2].

There are two recent developments in Victoria, discussed below, that show the Supreme Court of Victoria’s acceptance of TAR as an efficient and accurate means of discovery. These are:

McConnell Dowell

McConnell Dowell concerns litigation over the design and construction of a natural gas pipeline in Queensland. On the question of discovery, the plaintiff claimed to have 1.4 million documents, after a de-duplication process. Justice Vickery noted that manual review of 1.4 million documents by a junior solicitor was likely to take around 583 working weeks (over 11 years), not taking into account time for supervision and review by others: at [5].

Noting the likely time and cost involved in manual discovery, the Court engaged a special referee to consider what process for discovery would facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute in accordance with section 7 of the Civil Procedure Act 2010 (Vic) (the “CPA”): at [4] and [8].

The special referee reported that TAR, which was agreed to by the parties, was consistent with the obligations of all parties under the CPA: at [33]. The Court accepted the special referee’s report, therefore approving the use of TAR by the parties.

McConnell Dowell followed a significant decision of the England and Wales High Court in Pyrrho Investments Ltd v MWB Property Ltd [4] which discussed the TAR process, set out 11 principles as to when TAR may be appropriate, and approved the use of TAR for 3.1 million documents, describing its use as ‘proportionate’. Significantly, the Pyrrho decision noted that not only is TAR likely to be more cost effective than manual review, but TAR was likely to be more accurate than manual review [5]

VSC Technology Practice Note 5

VSC Technology Practice Note 5 is bold, in that it expresses a preference for all civil litigation to be conducted, from the start to the finish, using electronic documents, rather than hardcopy.

The aspect of VSC Technology Practice Note 5 that is important to this note is that the Court has taken a flexible approach to discovery protocols by setting out general principles governing the use of technology for discovery in civil litigation. Further, consistently with the decision of

McConnell Dowell, the Court notes that TAR “will often be an effective method of conducting discovery where there are a large number of Electronic Documents to be searched and the costs of manually searching the documents may not be reasonable and proportionate”: at [8.7].

Discussion

Modern litigation often involves substantial documents because of the prevalence of electronic communication and the production of ESI. The Supreme Court of Victoria has accepted that manual review is now not likely to be the most efficient means of carrying out discovery where there is a large volume of ESI in civil litigation. The McConnell Dowell decision and VSC Technology Practice Note 5 represent a significant shift in the litigation landscape in Victoria towards the acceptance of technology as a more proportionate way of dealing with discovery in matters involving a large amount of ESI.