In a judgement handed down last week(1), an English High Court Master approved the use of the technique in a proceedings in which permission to use the technology had been sought by the parties.
In his decision, Master Matthews argued not only that 'there was no evidence to show that the use of predictive coding software leads to less accurate disclosure' but that it even implies 'greater consistency' than a traditional, manual review.
With the trial date more than a year away, 'there would be plenty of time to consider other disclosure methods if for any reason the predictive software route turned out to be unsatisfactory.'
The parties had agreed on the use of the software and how to use it, he noted.
Although the judgement shows clear evidence of predictive coding's growing acceptance, a strong emphasis was given to the cost saving potential of the technique. In this case, the Master asserted that the cost of manually searching the three million plus documents involved would be 'enormous' and 'unreasonable.'
'Whether it would be right for approval to be given in other cases will, of course, depend upon the particular circumstance obtaining in them,' he noted.
In a press release following the judgement, Taylor Wessing, one of the law firm's which had sought the court's approval to use predictive coding said: 'It is to be hoped therefore, that we have seen the birth of a new standard order that will be used in all cases where directions for the use of predictive coding are appropriate.'
English court decisions regarding the use of technology have not always been so favourable. Last year, the Companies Court in Smailes and another v McNally and another(2), highlighted the danger of over-reliance on technology in disclosure, particularly for scanned documents. In that case, the judge took a dim view of garbled optical character recognition (OCR) results, deciding that they did not allow for the required ‘reasonable search for [relevant] documents...’