The NZ E-Discovery Blog  Facilitating proportionate and efficient e-discovery

Do we need Judicial Permission?

February 25th, 2016

Last week, the High Court of England and Wales issued an order approving the use of predictive coding/TAR (technology assisted review). The decision in Pyrrho Investments Ltd v. MWB Property Ltd was the first in the UK approving the use of predictive coding.

Even though the Pyrrho decision was a first in the UK, predictive coding and TAR have been part of eDiscovery practices throughout the world for a number of years. We have previously had landmark decisions out of the US and Ireland. Even here in New Zealand we had the decision by Judge David Harvey in Kim Dotcom Vs. US, advising parties to consider options like predictive coding to get through the volumes of electronic information.

There have always been considerable articles outlining any examples of judicial acceptance around an eDiscovery approach, and in particular the use of TAR. Since the Pyrrho decision we have had widespread excitement (I wanted to say hysteria), mostly by providers and their marketers hailing a new dawn for predictive coding. 

These decisions have simply been too long in coming.

But, do we need Judicial Permission?

Do we need to ask the Court to use technology to improve the effectiveness and reduce the time and cost of the discovery process?

Requiring case law or judicial acceptance of using technology is just another hurdle that prevents lawyers confidently embracing the technology. Lawyers do not always want to go to court to substantiate an approach that uses TAR. Having to seek judicial approval can lead to further resistance by a profession that has typically been slow to adopt technology.

It is fair to say that the universal adoption of TAR has been held back by the lack of judicial endorsement. For a number of years some have resisted using TAR out of the fear that it might be indefensible if the process was ever called into question. Decisions like Pyrrho will at least go a long way to reducing these fears.

Do we hold TAR to a higher account?

We can get too caught up in asking for judicial approval, when we do not hold alternative and more traditional methods to the same degree of scrutiny.

With a more traditional linear discovery review, we do not have to seek judicial permission over whether it is a law clerk, junior lawyer or senior lawyer conducting the review. We do not interrogate the relevancy calls made by the review team and the potential inconsistencies of the reviewers. Some would argue we should, but it rarely happens.

Lawyers still have the same obligation to carry out discovery.

If there is anything that may be called into question, then by all means be more transparent with the other side. Just as you might engage with the other side to negotiate key individuals, date ranges and search terms, it might be prudent to outline that you intend using a form of TAR to get to the most important information to meet your discovery obligations.

As with any approach, it is important to make sure your TAR process can be substantiated if it ever needs to. Let’s have this discussion if the production has gaps, rather than spending considerable time at the outset. The test should not be over the TAR methodology or process, but more if what was produced was adequate and meets the requirements of the discovery order. If it is not then criticise just as you would any other gap in discovery.

TAR is a very effective method to get through large volumes of information. It is considerably faster, cheaper and more accurate than any human review method. Even so, TAR will not be right for every matter, but it still should be at least one of the options you consider.



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