We were a long time waiting for the publication of the judgment in Brown v BCA Trading and others, the first occasion, publicly at least, where the use of predictive coding was ordered by the court in the face of opposition. Ireland has had the disputed case of Irish Bank Resolution v Quinn, and England and Wales has the agreed use of predictive coding in the UK Pyrrho case. Now we have an England and Wales case in which the use of predictive coding was unsuccessfully contested.
The judgment was published just as I set off abroad to talk about the other hot topic of 2016, the General Data Protection Regulation and other aspects of privacy and data protection. I am spared having to analyse BCA Trading from scratch because Adam Kuhn of Recommind (now OpenText) has already written a useful summary which you will find here.
Two main factors appear from Adam Kuhn’s article which are worth highlighting. The first is the obvious one of cost savings and the balance to be struck between the reduction of volumes for review and the risk, such as it may be, of crucial documents being missed by the use of this technology. The smallness of that risk is now described in enough judgments, as well as academic papers, for further discussion here to be otiose.
There are still those who argue to the contrary – not just technophobic lawyers but respected commentators – but the invocation of the word “proportionality” makes it increasingly difficult to say that predictive coding is inappropriate. Adam Kuhn rightly quotes Registrar Jones who said “predictive coding must be the way forward”.
The second point identified by Adam Kuhn is the Registrar’s focus on the importance of identifying issues. He was not, he stressed, ordering “issue-based disclosure” but he required the lawyers (as is their duty anyway) to have discussions to “narrow matters down and reduce the costs”.
The Registrar said this in paragraph 6 of the judgment.
disclosure is a stage when great advantage in terms of time and cost may be achieved by seeking to narrow down issues. This requires, as the parties accept, an internal assessment followed by a discussion between the parties concerning the likely shape of the issues at trial within the context of disclosure. A successful outcome from the use of predictive coding must, at least to some extent, depend upon the success of the parties having been able first to narrow down the issues and therefore the categories/types of documents relevant to the disclosure process.
I’m interested in Adam Kuhn’s conclusion that the development of UK case law “could very well leapfrog the US jurisprudence”. He sees the focus on issues as something which is likely to encourage this.