In February, we wrote about Pyrrho Investments Ltd. v. MWB Property Ltd., a case before the High Court of Justice—Chancery Division, in which the parties had agreed to use technology-assisted review (TAR) as their document review method and approached the court seeking its approval. Noting that no case law had yet spoken on the issue of automated review, Master Matthews turned to the disclosure rules set forth in Practice Direction 31b, which support the use of “automated methods of searching if a full review of each and every document would be unreasonable.” He also noted “whether it would be right for approval to be given in other cases will, of course, depend upon the particular circumstances obtaining in them”—and in Pyrrho, the consensus of the parties regarding proportionality, efficacy, and suitability was a key consideration.
On May 17, the court delivered a judgment in another case, ordering, for the first time, the use of TAR in the face of disagreement between the parties as to its suitability for the matter.
In this particular case, based on a report by Berwin Leighton Paisner (BLP), the petitioner sought a buy-out of his minority shareholding. The respondents contested the allegations and petitioner’s suggested valuation. Nevertheless, the parties reached agreement on most directions in advance of the first Case Management Conference. The respondent possessed the vast majority of the potentially relevant documents, approximately 500,000. The sticking point, according to BLP, was over the most proportionate and appropriate approach to disclosure. The plaintiff’s solicitors wanted to adopt a linear review approach suing an agreed upon list of custodians and search terms. BLP, which represented the respondent, asserted that the costs of this approach would be excessive and TAR could achieve “super results…at a more proportionate cost.”
The court ordered that TAR be used by the respondent, following the respondent’s solicitors’ arguments to the court referring to the relevant passages and relevant factors outlined by Master Matthews in Pyrrho supporting the use of TAR.
Even though details of this case are still emerging, it affirms that TAR is here to stay as an important document review approach to ensuring that litigation remains proportionate. Given the increasing emphasis on proportionality in the procedural rules of courts around the world, including the amended Federal Rules of Civil Procedure, it may become increasingly difficult for parties to argue against the use of TAR in defensibly managing the burden of eDiscovery.