The English High Court recently permitted a party to use predictive coding technology in a contested application.
Only a few months ago in Pyrrho Investments Ltd and another v MWB Property Ltd and others (2016) EWHC 256 (Ch), the English High Court delivered its first reported decision expressly approving the use of predictive coding technology in circumstances where the parties consented to its use. On 17 May 2016, it went further and made an order permitting one party to use predictive coding technology for disclosure purposes, notwithstanding the other party’s objection to its use.
The underlying litigation concerns an unfair prejudice petition brought by a minority shareholder against the respondent, BCA Trading. At the Case Management Conference, the parties disputed which approach the respondent, as the party that holds most of the documents, should take to disclosure. Whereas the petitioner wanted the respondent to review the documents in a linear fashion after applying keyword search terms, the respondent wished to use predictive coding technology on the basis that the results would be superior and the costs more proportionate.
Predictive coding involves training the relevant predictive coding software or technology to categorise each document in the whole document set as either relevant or not. This machine learning is achieved by a process in which a senior lawyer (who has mastered the issues in the case) reviews a sample set of documents for relevance. This sample set is then used to train the software, and through a process of iterative refinement (using further sample sets), an appropriate confidence level and margin of error is reached. Once the technology has been trained in this way, it is applied across the entire document set to identify relevant documents.
According to the respondent’s lawyers, counsel for BCA Trading referred the court to the factors cited in the Pyrrho Investments decision in favour of using predictive coding, noting that the majority of the factors also applied to the present case. The court ordered that predictive coding be used on this basis, according to the respondent’s lawyers.
This ruling, as well as the earlier judgement in Pyrrho Investments, is likely to encourage, and in some cases, compel, lawyers to consider using technology-assisted review, such as predictive coding, in appropriate cases going forward. Law firms should therefore have the requisite knowledge and expertise when they need to go to court for either permission to use such technology or to object to its use when it is considered inappropriate.