The Court of Appeal has dismissed an appeal against an order of the High Court which approved the use of Technology Assisted Review ("TAR") for inter party discovery. The plaintiffs had sought permission to use TAR in order to deal with a large dataset requiring review for discovery and had proposed a draft protocol, setting out the proposed methodology to be used. In today’s ruling, the Court of Appeal said there is an increasing need for courts to ensure that discovery is complied with in a cost effective and proportionate manner.
In IBRC and Ors v Quinn and Ors, three defendants objected to the use of predictive coding and analytics for discovery to be made by the plaintiffs, on the basis that this method of analysing data did not comply with the Rules of the Superior Courts. The plaintiffs had run key word searches which resulted in a dataset of approx. 1.8 million documents, which reduced to 900,000 following deduplication. Approximately 680,000 of these were susceptible to predictive coding, and IBRC notified the defendants of its intention to use TAR to make discovery, to which certain of the defendants objected. IBRC proposed a protocol for the use of TAR and with its own experts met with the defendants. The protocol provided for the defendants’ counsel to view a schedule of the relevance calls made during the predictive coding, subject to the removal of privileged and commercially sensitive documents. In March 2015, Mr Justice Fullam approved the use of TAR for the discovery in these proceedings.
In their appeal against that decision today, the appellants argued that the High Court erred in approving the use of TAR, on the basis that it did not comply with the requirements of the Rules of the Superior Courts and that in particular the methodology proposed by the plaintiffs sought to weaken the obligation to make full and frank discovery of all relevant documents. The appellants also contended that the fact that the plaintiffs had not furnished their key words or notified their intention to use TAR to the defendants at the outset breached the Sedona principles.
Ms Justice Finlay Geoghegan, giving the unanimous judgment of the Court, said that the High Court has jurisdiction to model its own rules and was correct in deciding that, in accordance with its inherent jurisdiction, it was entitled to approve of TAR using predictive coding and the proposed protocol. She said that the courts have addressed the necessity to use technology given the challenges presented by large discoveries. The Court was satisfied that what was approved by the High Court was fair, proportionate and took account of the increasing need for the courts to ensure that discovery is complied with in a cost effective manner.
The Court also approved the plaintiffs’ proposed methodology as an appropriate method of making discovery and found that on the facts of this case, what was put forward was appropriate for the use in these proceedings. The Court noted that the plaintiffs' solicitors McCann FitzGerald had correctly confirmed on affidavit that the use of TAR did not in any way derogate from the obligation to make discovery in accordance with order 31 rule 12 and that it was clearly being done in accordance with the obligations of clients in conjunction with their solicitors to swear affidavits in accordance with the Rules of the Superior Courts.
The Court noted that, on the evidence, the defendants had been furnished with the key words deployed, albeit not at the outset, and applying O’Leary v Volkswagen1 that there is no automatic entitlement to receive the key words of the party making discovery, although in general terms there might be circumstances where a party would be directed to provide them. The Court endorsed the Sedona principles and said that parties should aim for the earliest engagement possible in relation to an intention to use TAR, but noted that no prejudice arose on the facts particularly as the appellants were given a copy of the protocol and did not seek to engage in any way in relation to the methodology.
This decision is a welcome confirmation by the Court of Appeal that TAR using predictive coding, properly conducted, is appropriate for inter party discovery.
Practitioners will note with interest the Court’s comments in relation to early engagement, which reflect the principles set out in the CLAI Good Practice Discovery Guide v2.0. This undoubtedly presents a challenge for a party faced with a large discovery, because the nature of the technology is such that it may not be possible to say at an early stage that TAR is appropriate for the particular dataset, and until discovery is ordered and data is processed it is not possible to identify the volume of documents requiring review.