Technology assisted document review (TAR) has been ordered for the first time in Australia by the Victorian Supreme Court. Given the large number of documents being created every day and the need to deal with cases at proportionate cost, it was inevitable that Australian courts would follow the US, UK and Irish courts by endorsing TAR in appropriate cases.
The recent judgment in McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd & Ors (No 1)  VSC 734 (McConnell Dowell case) ordering parties to employ TAR means potentially altering the discovery process and lowering litigation costs arising from document review in large document cases if in the future TAR is more readily permitted in litigation.
What is predictive coding?
Call it what you will: TAR; Computer Assisted Review; or predictive coding: this is more than a simple word search facility. It involves 'training' a computer to find conceptually similar documents within a data set and for the computer to 'predict' whether that document would be marked relevant or not relevant by a reviewer. Over several batches, the computer continues to learn from decisions fed in to it by a senior reviewer, until the coding 'predicted' by the computer matches the senior reviewer's review and the senior reviewer no longer needs to overturn decisions made by the computer to form a complete relevant review set. For large document sets, TAR is much faster than manual discovery and likely to be lower cost.
The McConnell Dowell case
This case concerned a dispute that arose from the design and construction of a natural gas pipeline in Queensland. Potentially 4 million electronic documents needed to be reviewed. The document count was later reduced to approximately 1.4 million potentially relevant documents. The Court estimated the review process would take 583 weeks if done by a single solicitor.
In light of the large quantity of documents to be reviewed, the Court considered the traditional discovery process to 'risk placing the cost-benefit of conducting litigation in a large document case at serious risk.' The Court appointed a Special Referee, Anthony Nolan QC, to assist it by providing a report prescribing the appropriate management of discovery in the proceeding. The Special Referee recommended the parties employ predictive coding in the discovery process. This approach was ultimately endorsed by the Court recently.
We predict the use of TAR will become more prevalent in cases where review of significant amounts of documents is required.
The Victorian Supreme Court will issue a practice note about the use of TAR on 1 January 2017. We understand it will be the first court in Australia to do so. We expect that other Australian courts will follow suit in issuing a practice note, and it will be interesting to follow the approaches taken by other Australian courts.
DLA Piper is well placed to assist in TAR through the auspices of our eDiscovery and Information Management group. In our experience, TAR brings with it a new set of discovery issues which DLA Piper has experience in managing, including:
- The potential need for agreement between the parties as to the parameters of a review
- Issues as to the method of selection of seed documents
- The potential for exchange of the seed set of documents between the parties (which may include many irrelevant documents)
- Competing algorithms from possible TAR providers