Following on from the recent decision of the English High Court's approving of the use of Predictive Coding in discovery the Irish Court of Appeal has now approved the use of Technology Assisted Review (TAR) in a discovery process.
In Pyrrho Investments and others v MWB Property and others  EWHC 256 the English High Court for the first time formally approved the use of TAR to deal with e-disclosure. The English decision followed the approach adopted by the Irish Commercial Court in IBRC v Quinn  IEHC 175 which likewise approved the use of TAR.
In IBRC v Quinn the defendants unsuccessfully opposed the plaintiffs' application for approval of the use of TAR to review approximately 680,000 documents (reduced from an initial 1.7 million through the use of search terms filters). In the absence of an agreement between the parties, the plaintiffs furnished a proposed protocol to the court setting out how the document review would take place. Fullam J in the Commercial Court was satisfied that the suggested approach would result in a substantial reduction in time and costs. He noted that no method of review was 100% accurate but that even if it were only as accurate as a manual review, TAR would still be quicker and cheaper than manual review. The Court held that any TAR process must include checks and balances which rendered each stage capable of independent verification. It concluded that the IBRC protocol met this standard.
The defendants appealed this decision to the Court of Appeal where they argued that TAR did not comply with the requirements of the Rules of the Superior Courts and the protocol put forward by the plaintiffs was inadequate in the circumstances. The defendants also criticised the failure of the plaintiffs to furnish key words or indicate their intention to use TAR at the beginning of the discovery process.
The Court of Appeal held that the High Court has jurisdiction to model its own rules and was therefore entitled to approve of TARand the proposed protocol. It noted that the courts have previously addressed the use of technology in large discoveries. The Court was satisfied that what was proposed was fair and took account of the need for the courts to ensure that discovery is complied with in a cost effective and proportionate manner.
The Court did accept that parties should engage with each other at the earliest possible point, in relation to an intention to use TAR, but held that, on the facts, there was no prejudice to the defendants in circumstances where they were given a copy of the protocol and failed to engage in any way in relation to the proposed methodology.
While the ever increasing growth of data maintained by business means that disclosure cost will remain substantial, the decisions of the Irish and the English Courts offer litigants a welcome tool to try to reduce the time and expense involved.