Inevitably, there has been a great deal of comment on the recent Opinion delivered by US Magistrate Judge Andrew Peck in the Rio Tinto case. I wrote about it, in tandem with a summary of an Irish judgment of the same week, in an article called TAR-red with the same brush in the US and Ireland.
One of the most succinct summaries comes from Constantine Pappas at kCura, in an article called More Da Silva: 3 Takeaways from Judge Peck’s Rio Tinto Opinion. I mention it partly because it lives up to its title, with three short points of value, and partly because Constantine Pappas and I have shared views on this subject ever since I did a panel with him at Relativity Fest a couple of years ago.
The three takeaways which Constantine identifies are:
1. Producing parties don’t need to worry about approval for computer-assisted review
2 Transparency and cooperation are essential, but sharing seed documents may not be…
3 … because no one protocol can dictate every computer-assisted review project.
Whilst I am aware that this took no particular gift of prophecy on our part, these are the same points that Constantine Pappas and I isolated in a chat about predictive coding technology assisted review just before Christmas. The pure technology is, of course, important. What is very much more important is to fit it into the framework required by the rules and into an approach which attaches as much weight to common sense and proportionality as it does to statistics and algorithms.