Last week’s ruling by the High Court of England & Wales in favour of the use of predictive coding in discovery in a contested application confirms that the question is no longer whether it is permissible to use this technology for discovery but whether there is a good reason not to.
In our earlier briefing, we reported on Pyrrho Investments Ltd v MWB Property Ltd1 which saw the first formal court approval of technology assisted review (“TAR”) for inter party electronic discovery2 in England & Wales.
In discovery, TAR involves the use of predictive coding and analytics software to identify relevant documents for discovery from a larger dataset far more quickly and accurately than with traditional review methods. TAR properly done can greatly reduce the time and cost associated with large scale electronic discovery.
In Pyrrho the parties were in agreement as to the suitability of the technology for making discovery. In last week’s ruling in Brown v BCA Trading3 there was no such agreement, so it represents the first contested application in which an English court has formally approved the use of TAR.
This brings the position in England & Wales into line with the Irish Court of Appeal’s ruling earlier this year in IBRC v Quinn and Ors4 and confirms that even where the parties cannot reach agreement on the use of TAR for discovery the court will, in an appropriate case, approve its use provided that there is sufficient transparency. The courts have been clear that this in no way waters down the obligations on solicitors and clients to make full and frank discovery and that parties are expected to find ways to reduce discovery costs where it is possible to do so.
In the United States, where TAR has been considered ‘black letter law’ for a number of years, parties can expect to be asked to explain why they are not using TAR.5
What now for practitioners and clients?
Practitioners need to keep abreast of the evolving technology and the fact that one size does not fit all when it comes to choosing an appropriate discovery platform. Not all documents are susceptible to TAR and there are many different platforms available on the market, some of which operate in quite different ways. Opting for a system that is not optimum for the task in hand may have significant cost implications.
Now that the debate has moved beyond the question of the appropriateness of TAR for discovery, it is likely to centre on issues such as whether a system permits the transparency that has been mandated by the Court of Appeal, whether using a system for prioritisation only is likely to result in sufficient cost savings, whether a given method is likely to be more accurate and to what extent a party is required to disclose the statistical output of the system following the review.
Practitioners need to be equipped to engage in constructive dialogue with their opposition on technology-related issues and to explain their proposed methodology in an informed way, while ensuring that they retain a record of all steps taken so that they can stand over the discovery in the event of a challenge.
Clients, for their part, need to be confident that their solicitor has the expertise to choose the most appropriate technology solution to meet their needs so that they can be confident that they are complying with their discovery obligations under the applicable rules of court in the most efficient and cost effective manner available, and that the methodology is appropriate and meets the standards set by the courts.