At Ricoh’s Technology in Practice in Toronto last November, I moderated a panel called TAR Trends around the World. The panellists were US Magistrate Judge Andrew Peck (now retired from the bench and a Senior Counsel at DLA Piper), Maura Grossman (formerly a New York litigation partner and now Research Professor at University of Waterloo), and Constantine Pappas of Relativity.
One of our objectives was to summarise the development of judicial approval of the use of technology-assisted review in different jurisdictions. We referred to various papers, opinions and judgments and it is perhaps helpful to give links to these documents. For the sake of brevity. I will not quote heavily from any of these sources. They are all worth reading.
The starting point was an article written in 2011 by Maura Grossman and Gordon Cormack called Technology-assisted review in eDiscovery can be more effective and more efficient than exhaustive manual review. This article fulfils the ambition expressed in its title and it has been quoted extensively in court judgments and opinions around the world.
Shortly afterwards Judge Peck gave a speech at a conference in Carmel. I was there and wrote it up in detail because it seemed to me that it took us to a tipping point in judicial acceptance of technology-assisted review.
Judge Peck subsequently set out his thoughts in an article called Search Forward.
Several US cases addressed the issues raised by technology-assisted review, the most influential of them by Judge Peck. The first was Da Silva Moore. Judge Peck followed this with his opinion in Rio Tinto v Vale S.A.
As with the Grossman-Cormack article, Judge Peck’s opinions were quoted in successive judgments around the world. The first non-US judgment was given in Ireland in Irish Bank Resolution v Quinn. The use of technology-assisted review was strongly contested, making this judgment more interesting than most because the judge, Mr Justice Fullam, was required to analyse the arguments in detail. He found in favour of the use of TAR.
The next TAR judgment was in England and Wales in a case called Pyrrho. By the time this reached the court, the parties had agreed both on the use of TAR and how it was to be used. There had, however, been months of fierce dispute between the parties before they sensibly agreed to cooperate as to the means of tackling a very large discovery exercise. Pyrrho is worth reading for the ten points helpfully set out at the end which had persuaded the master to bless the use of TAR.
That was followed also in England and Wales by BCA Trading in which, as with the Irish case, the use of technology-assisted review (or predictive coding as the registrar called it) was hotly contested. Giving judgment, the registrar said among other things that “predictive coding must be the way forward”.
The scene then switches to Victoria in Australia where Justice Vickery in his judgment in McConnell Dowell approved the use of technology-assisted review.
Justice Vickery was also instrumental in the drafting of Practice Note SCM 5 Technology in Civil Litigation which covers a wide range of subjects. It specifically addresses technology-assisted review with these words:
In larger cases, technology assisted review will ordinarily be an accepted method of conducting a reasonable search in accordance with the Rules of Court.
This is the first reference in the rules of any jurisdiction specifically addressing the use of technology assisted review.
The fact that there have been no significant judgments since perhaps indicates that the use of technology-assisted review has been judicially accepted in the jurisdictions mentioned and that the scope for arguing about it has correspondingly diminished.
Early drafts of the proposed new disclosure rule for England and Wales show that the subject is to be addressed there. It is to be hoped that the final version of the rule will draw a clear distinction between the general run of analytics tools and technology-assisted review.
It seems likely that the remaining common law countries which require discovery will come to accept the use of technology-assisted review. There are signs also (albeit anecdotal) of its acceptance by regulatory bodies in civil law countries, such as in the EU, which are hitherto unused to discovery on a large scale.