Ireland: Landmark Irish Judgment On Use Of TAR And Predictive Coding In Discovery

Earlier this month, the commercial division of the Irish High Court gave its judgment in IBRC & Ors. v. Sean Quinn & Ors. on the proposed use of technology assisted review ("TAR") and predictive coding methods to assist the Irish Bank Resolution Corporation ("IBRC") to review some 680,000 documents.  In an important milestone for the future use of the technologies, Fullam J ruled that TAR using predictive coding complied with the rules of court governing discovery. 

The Discovery Process 

A large component of the fees in litigation is the cost of making pre-trial disclosure of documents to an opponent (known in Ireland as "discovery").  These fees often comprise as much as 50% of the total costs of a case; a function of the explosion of documentation created in modern workplaces, and the need for lawyers to review large swaths of that documentation prior to making discovery. 

The discovery of soft-copy data typically follows a five stage process involving: 

(a) the identification, preservation and retrieval of potentially relevant data;

(b) the upload of that data onto a data retention system;

(c) the processing or filtering of the data to remove duplicates, program files, etc., and to create a 'document pool';

(d) the manual review of each document in the document pool by a team of junior lawyers using a document review platform; and

(e) the production of the relevant documents to the opponent. 

Technology has been assisting lawyers to perform all stages of this process for some time.  However, there has traditionally been no alternative but to manually perform step (d).  While the pool of relevant documents could certainly be reduced with the use of keyword searching and the identification of key custodians and date ranges, the decision-making process of identifying relevant documents in the document pool has always been manually performed by lawyers. 

Typically, manual review requires multiple reviews of the document pool.  Though methodologies can vary from case to case, a first review will typically be performed to assess the relevance of each document in the document pool.  A second review will then be performed on the documents classed as relevant during the first review, in order to assign them to the categories of documents that the party has agreed, or has been ordered, to discover.  A third review will then be performed in order to assess whether any of the relevant and categorised documents are privileged or require redaction to prevent the disclosure of irrelevant commercially sensitive information.  Quality control reviews are also performed at each stage by senior lawyers. 

In commercial cases involving tens of thousands, if not hundreds of thousands of documents, this methodology requires a lot of man-hours to implement and, as a result, can incur very significant costs. 

What are TAR and Predictive Coding? 

TAR is a term used to describe a variety of different computer-aided review technologies, including data mining, analytics and predictive coding.  Predictive coding operates by learning from the coding decisions made by a small team of senior lawyers on a small subset of documents, and extrapolating those decisions across the entire document pool.  Different providers have different software but each uses sophisticated algorithms to identify patterns in the documents the subject of the relevance decisions by the lawyers.  Over a series of iterative rounds of testing, learning and quality control, the software's decision-making is honed until the user can be confident that it will capture a statistically-justifiable proportion of the relevant documents in the document pool.  Similar mathematics are used in many industries today, including in the spam filters commonly applied to email inboxes. 

Predictive coding is, however, not a panacea for all of discovery's ills. 

First, a relatively large and homogenous document set is required so that the software can identify consistent patterns in the language of the individual documents, and for predictive coding's economies of scale to operate effectively. 

Second, documents containing little or no text, or foreign language, are not amenable to predictive coding's methods.  They must be extracted from the document pool and manually reviewed. 

Third, predictive coding is at present suitable only to replace the first pass relevance review in a discovery project.  While predictive coding can emulate and replace the binary choice between relevance and irrelevance, it cannot cope with the multiple choices involved in the categorisation of documents.  Therefore, after predictive coding has identified the relevant documents in the document pool, manual review must be performed at second pass (to assign the relevant documents into their appropriate categories) and third pass (to identify and prevent the disclosure of privileged documents).


After discovery was ordered by the Court, IBRC collated its data and used keyword searching to reduce it to a pool of 680,809 potentially relevant documents.  IBRC calculated that it would take 10 lawyers nine months manually to review these documents, at a cost of €2m.  Rather than incur this cost and delay the proceedings, IBRC proposed instead to use predictive coding to perform the review.  It relied upon expert evidence and a number of studies that showed TAR to be more accurate in identifying relevant documents than a traditional manual review.  To assuage any concerns of the defendants, and ultimately the Court regarding the use of predictive coding, IBRC had produced a draft protocol and had invited input from the defendants on its provisions. 

While the defendants initially engaged with IBRC, they ultimately refused to agree to the use of the technology.  IBRC asked the Court to determine whether TAR, and predictive coding in particular, complied with the Irish Court's rules on discovery and, if they did, the most appropriate methodology for the use of the technology. 


Fullam J stated that while the rules of court are silent as to the means that a party should employ in order to comply with its discovery obligations, the principles of economy and expedition are integral considerations in that context.  Having regard to US case law and to the academic studies which asserted that TAR was more accurate than manual review, the Court posited that, even assuming TAR to be only equally as effective as manual review, the use of the technology would – by virtue of its relative speed – still permit a more expeditious and economical discovery process. 

However, because TAR involves man and machine interacting, Fullam J ruled that an appropriate methodology for its use must contain appropriate checks and balances to render the accuracy of each stage capable of being independently verified.  Fullam J further found that a balance must be struck between the right of the party making discovery to determine the manner in which discovery would be provided, and participation by the requesting party in ensuring that the methodology chosen by the discovering party was transparent and reliable.  Provided that these conditions were complied with, it was held that a TAR project using predictive coding could be used to discharge a party's discovery obligations under the rules of court. 

The Court then assessed IBRC's proposed TAR protocol and, subject to one minor amendment, was satisfied that the protocol contained adequate controls on reliability, and provided for appropriate levels of participation by both sets of defendants. 

Key Takeaways 

The Irish judiciary has been keen to impress upon parties to litigation the need to contain costs during the discovery process.  Experience in the United States suggests that the use of TAR and predictive coding can dramatically lower the cost of making discovery in document-intensive actions, while also expediting the discovery process. 

Seeking engagement and input from an opponent on the details of a TAR protocol while still exchanging pleadings, or at the close of that process, is advisable.  However, a party is not required to implement its opponent's suggestions.  Ultimately the party making discovery and its legal representatives are accountable to the court and not to their opponent for the quality of their discovery, and thus their TAR protocol.

TAR using predictive coding now has the Irish High Court's imprimatur and parties are free to use it to comply with their discovery obligations and so reduce costs.  However, that approval is caveated, and a party's legal representatives and technical advisors must devise a protocol that ensures the reliability, integrity and transparency of the predictive coding project.

1  Record number 2011 5843 P – IEHC citation not yet available.  Delivered 3 March 2015, Fullam J. 

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Eugene McCormick
Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions