The recent decision of Mr Justice Coulson in Triumph Controls UK Limited & another v Primus International Holding Co. & others [ 2018 ] EWHC 176 (TCC) is a timely reminder of the importance of proper preparation in advance of undertaking a disclosure exercise. It also serves to reinforce the obligation to be open about how you intend to conduct that exercise.
The judgment concerns an application by the Defendants in relation to alleged failings by the Claimants in carrying out a disclosure review of 450,000 keyword responsive documents.
In their EDQ, the Claimants had indicated that a manual review of all keyword responsive documents would be carried out. It subsequently transpired that the Claimants had unilaterally employed technology assisted review (TAR) in the course of the manual review process, and had decided (with the aid of the TAR system) not to review 220,000 of the 450,000 other than by way of a 1% sample. The TAR system had predicted that only 0.38% of the 220,000 documents were expected to be relevant and therefore the Claimants, again unilaterally, deemed it disproportionate to continue the review. These decisions were not passed on to the Defendants at the relevant times. It is important to emphasise here that the judgment does not seek to criticise the use of TAR, but serves to highlight the importance of using it properly and openly.
A key factor in the judgment was that the Claimants, in response to the application, appear to have been unable to fully explain how TAR had been implemented or operated. Furthermore, the inability to explain or evidence how the sampling exercise was conducted also came in for criticism.
The judge concluded that “the steps taken by the claimants in relation to the balance of the 220,000 documents have not been adequate” and ordered a manual review of a 25% sample with the results to be considered at a later hearing.
The judgment represents a timely reminder of a number of important points that clients and practitioners should bear in mind:
- A cost effective disclosure exercise review requires careful planning well in advance of filing an EDQ.
- Parties will be expected to do what they said they would do – any changes should be notified to the other side promptly, with supporting reasons.
- Record and be prepared to justify the reason for making certain decisions which could be questioned later – especially decisions based on “proportionality“.
- When implementing TAR (and potentially other forms of analytics), be open with the other side and seek to agree the methodology and operating parameters, including the identity of the subject matter expert who will train the system.
- Unilateral decisions will face the greatest scrutiny, and therefore the greatest risk.
Most, if not all, of the potential pitfalls can be avoided by (i) implementing a protocol for how document collection and review will be approached; (ii) by communicating the decision making process to the other side in order to seek agreement; and (iii) being aware that any changes should be communicated promptly.