The review of key documents is an integral step in the discovery
and preparatory stages of litigation. This task has become
increasingly costly and more time consuming for clients given the
increased volume of data generated by electronic communication and
online business practices. However, technology assisted review
tools in the area of electronic discovery such as predictive
coding, have been championed in other jurisdictions for
significantly accelerating the process and reducing costs.
There are initial signs that the technology is gaining traction in
Ireland with Counsel for IBRC in its action against Quinn Insurance
Limited and others, requesting the Court's permission to
use "technology assisted discovery" to analyse
the relevance of 1.75 million documents. The Court has allotted a
two day hearing, to commence on 16 October 2014, to determine
whether technology assisted review should be permitted and if so,
whether all parties should be allowed to have an input into its
use.
The predictive coding system operates by assessing a small set of
documents that have already been analysed by members of the core
legal team. The system will then determine how likely it is a
document is considered relevant based on the previous assessments
made in respect of the reviewed set. This process results in
the most relevant documents being available for review at the
earliest opportunity, leading to an early consideration of the key
issues and an expedited review process. In this regard, it is
important that the initial review must be carried out by lawyers
with an intimate knowledge of the case. While it has been argued
that the technology potentially can be entrusted to perform the
entire review, in practice a manual human review ought not be
entirely excluded from the process.
Up until the Quinn litigation, predictive coding had never been
considered by the Irish courts. However, experiences in the
US show a marked acceptance of the technology. In the
breakthrough case of Da Silva Moore, it was judicially
endorsed as being superior to other discovery alternatives, such as
keyword searches (which have long been accepted by the Irish
courts). Anecdotal evidence suggests significant cost savings
for cases involving large volumes of discovery documents, and
research shows that predictive coding is more consistent and
accurate than even manual review by lawyers. The system has
further been lauded for substantially reducing the risk of parties
being accused of deliberately concealing relevant documents, as it
is far easier to justify the non-production of an important
document where the predictive coding programme coded it as
non-responsive in the first instance.
For all its benefits, however, this new technology is not without
its flaws. The primary concern is that it is used in a small
number of cases, and as such, industry standards are not set, and
there is little agreement about when and how it should be used.
Provided agreement is not reached between the parties to the Quinn
litigation in the interim, the hearing in October will be an
eye-opener as to how receptive or indeed responsive the Irish
courts are to this development.
The Court could take the view that as long as a party can prove it
adhered to its discovery obligations, the methodology employed does
not become relevant until post production if issues arise in
relation to the adequacy of discovery. As predictive coding relies
so heavily on results gleaned from an initial set of reviewed
documents, the comprehensiveness of this preliminary step in the
process will therefore be crucial in defending any adequacy based
challenge. Alternatively, and in line with the requirement in the
US for an agreed discovery protocol, the Court could approve
technology assisted review on the condition that all parties agree
and input into its use. Whatever the outcome, this will be a
landmark decision in relation to discovery methodology and we will
provide a further update once judgment has been delivered.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.