Hal Marcus is Discovery Attorney and Director of Product Marketing at Recommind (now OpenText). I caught up with him in London in May, after the publication of the judgment in Pyrrho by which the English court approved the use of predictive coding for the first time. We did not know it, but news of the contested application in the BCA Trading case was breaking as we spoke.
Perhaps the main point which Hal Marcus makes in this interview (you will find it below) is that Recommind has been working with UK lawyers since the end of the last decade on the use of advanced analytics. It has, nevertheless, taken all this time until the English court made a decision about it.
Hal Marcus observes that Pyrrho will create an environment in which people are eager to learn about the technology. There are, he says, many ways to use predictive coding which do not involve the intervention of the court, including investigations, QC, and perhaps most importantly, bringing out facts early on in a case and using prioritisation to elevate the most important documents.
Education is needed to develop ideas on transparency, on appropriate protocols and on identifying cases suitable for the use of analytical tools in conjunction with other search tools.
Hal Marcus points out that there is danger in getting into too much detailed discussion about the proposed use of technology. Whatever the arguments in favour of detailed protocols, they open the door to potentially excessive and disproportionate discussions about how the technology is to be used at an early stage when the full implications are not yet known. There is the possibility for “ arbitrary guidelines” to be baked into an agreement before their implications are clear.
This is not to deny the importance of agreed protocols. The important thing is to understand enough about the technology, what it costs, what it can save and when it is best used.