February 1, 2023

UK Court approves technology-assisted review in case for first time

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UK-This-WayBy Zach Warren, From Legaltech News

Master Matthews of English High Court allowed the parties to proceed with predictive coding because of proportionality concerns, among other factors

In 2012, Judge Peck’s ruling allowing for technology-assisted review (TAR) in Da Silva Moore v. Publicis Group changed the discovery landscape, allowing for cost savings as long as e-discovery is done reasonably. In March 2015, Justice Fullam in Ireland brought TAR outside the U.S. for the first time, allowing for predictive coding in Irish Bank Resolution Corporation Limited & Ors v. Sean Quinn & Ors.

However, despite increased TAR recognition in two recent U.S. cases, including Rio Tinto Plc v. Vale S.A., TAR had seemed to be confined to those two countries. But now, the UK – the world’s second largest discovery market – is open to TAR usage.

On Feb. 16, in the case Pyrrho Investments and MWB Business Exchange v. MWB Property and others, Master Matthews of English High Court allowed the parties to proceed with predictive coding in the case, marking TAR’s first use in UK courts.

In the decision (hosted online by Chris Dale of the eDisclosure Information Project), Master Matthews noted, “So far as I am aware, no English court has given a judgment which has considered the use of predictive coding software as part of disclosure in civil procedure.”

To formulate the opinion in the absence of this precedent, Master Matthews cited ten factors that led him to favor approving predicting coding in the case. Included among these are that “[t]here is no evidence to show that the use of predictive coding software leads to less accurate evidence than, say, manual review alone” and that “there will be greater consistency in using the computer to apply the approach of a senior lawyer towards the initial sample (as refined) to the whole document set, than in using dozens, perhaps hundreds, of lower-grade fee earners…”

Proportionality also played a particularly influential part in the decision. As Master Matthews wrote, “The cost of manually searching these documents would be enormous, amounting to several million pounds at least. In my judgment, therefore, a full manual review of each document would be ‘unreasonable’…” Counsel in the case, meanwhile, estimated that the cost of TAR would instead be much lower, between roughly 181,000 and 469,000 pounds, plus hosting fees.

David Horrigan, e-discovery counsel and legal content director at kCura, told Legaltech News soon after the decision was handed down that this ruling should be viewed as more than yet another step for legal technology.

“Predictive coding and technology assisted review have become so commonplace that we forget just revolutionary this is,” Horrigan said. “When Da Silva Moore was handed down in 2012, it was a pretty earth-shattering event. … The idea that you would not look at every document was a fundamental change.”

And now, Judge Peck’s TAR rulings are taking hold overseas. In lieu of established UK legislation or case law relating to TAR, Master Matthews quoted directly from Da Silva Moore within this ruling. Horrigan pointed to this citation as evidence that the American view of e-discovery may be beginning to take a stronger hold abroad.

“E-discovery is often thought of as this crazy exercise those crazy Americans enjoy. Much of the world thinks we’re nuts on how much discovery we allow in civil litigation,” Horrigan said. “But Ireland and now the United Kingdom jumping on board and approving TAR really sets the stage and exemplifies that e-discovery isn’t just for Americans anymore.”

This means the flood gates may be opened for others looking to use TAR in UK courts as well. While Horrigan did not go so far as to make an official prediction, he explained, “The decision is pretty thorough. I can’t imagine that there’s anything controversial that British courts would try to go away from this decision. It’s an important milestone for the courts of England and Wales, and I think it is something that the other courts will follow.”

For more on this story go to: http://www.legaltechnews.com/id=1202749927152/UK-Court-Approves-TechnologyAssisted-Review-in-Case-for-First-Time#ixzz40WdZYzwB

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