The High Court in the UK has fully endorsed the use of predictive coding in discharging a parties obligation regarding electronic disclosure. Master Matthews, in Pyrrho Investments and others v MWB Property and others [2016] EWHC 256 (Ch), noted in this case that “there were no factors of any weight” to point in the direction of not using predictive coding for the disclosure process. This is the first time a UK Court has given judgment on the area, while noting the limited Irish and US jurisprudence on the topic.
Predictive coding, often referred to as technology assisted review, is the use of computer software to review and analyse documents, determining if they are of relevance to the issues of the case. It is not without human input however, as the computer must first be “trained” in order to determine relevance. Based on the training received the software can review and score documents for relevancy, subject to quality assurance exercises carried out by the human reviewer.
Master Matthews set out the following 10 factors in favour of approving its use;
1) Other jurisdictions (Ireland and the US) have endorsed its use in appropriate cases.
2) There was no evidence to show that the use of predictive coding led to less accurate disclosure.
3) There is greater consistency in using the computer to apply the approach of one senior lawyer as opposed to dozens or hundreds of lower-grade fee earners.
4) Nothing in the Civil Procedure Rules or Practice Directions prohibits its use.
5) The number of electronic documents in the case were huge, in the region of 3,000,000.
6) The cost of manual searching the documents would be enormous and unreasonable.
7) The use of predictive coding is far less expensive than a full manual alternative.
8) The value of the claim in the litigation is proportionate to the cost of using the software.
9) The trial of the litigation is not scheduled until June 2017 and so there is sufficient time to consider alternative methods of disclosure should it prove unsatisfactory.
10) The parties were in agreement that it should be used.
This will certainly be a welcome judgment in this jurisdiction which often sees litigation being hampered by voluminous and costly discovery exercises.