High Court says yes to predictive coding – the reaction

Litigators and eDiscovery providers alike have come out in force to welcome this week’s landmark High Court ruling backing the use of predictive coding – the first English court decision to approve the use of the software.

In what is being labelled a victory for proportionality, in the case of Pyrrho Investments v MWB Property, Master Matthews found that, given the three million-plus documents identified for review in the case, using predictive coding would be far preferable to undertaking a manual review.

“The cost of manually reviewing these documents would be enormous, amounting to several millions of pounds at least,” Master Matthews said. Going a step further, he added that undertaking a manual review of each document would be “unreasonable” given the availability of a lower cost automated alternative.

In giving his approval for the use of Millnet’s software, Master Matthews also noted that predictive coding is in use in other jurisdictions, that there is no evidence that it is any less accurate than manual review, and that it provides greater consistency.

While predictive coding is already in use in the UK, unlike in the US, with the case of Monique Da Silva Moore, et al. v Publicis Groupe & MSL Group, there has to date been no Court validation of the software. Reacting to this week’s High Court decision, Andrew Haslam, litigation support consultant at Allvision Computing, said: “Though we don’t place as much stock on precedent as the US, it is still very important. For many years in the eDisclosure world lawyers have asked ‘Where is the judicial approval for using these technologies?’ and the suppliers/consultants would point them at the 2009 Goodale ruling from Senior Master Whitaker, whilst hopefully crossing our fingers behind our backs.  The truth was, we didn’t have a definitive, well thought through ruling on the use of these tools, until now.”

Writing in a blog the day the judgment was handed down, Recommind attorney Adam Kuhn said: “The essential take-away is that predictive coding has been judicially approved and is defensible in principle.”

Master Matthews was taken through the potential cost savings of predictive coding by Taylor Wessing associate Edward Spencer. Taylor Wessing acted for the fourth defendant in the case.

Reactions in full:

Edward Spencer, associate, Taylor Wessing

“The judgment is significant as it clearly demonstrates a willingness by the judiciary to adopt technological advances in order to reduce the costs of litigation.

“By accepting that technology assisted review is a valuable and acceptable tool to be deployed in litigation, parties who are not proposing to use it may be challenged by the courts to explain why it is not being used.

“If implemented in a considered and appropriate manner, technology assisted review can promote the overriding objective.

“One clear benefit highlighted by the Master was that by having the software trained by a senior lawyer familiar with the case, the software is applying that person’s standard of review to the entire document pool.

“The endorsement of the technology from Master Matthews should mean that more lawyers are willing to move away from the traditional manual linear reviews of old and embrace technology assisted review to reduce the time and costs of a large disclosure exercise.”

David Horrigan, kCura eDiscovery counsel and legal content director:

“Pyrrho is yet another example showing that e-discovery isn’t just for Americans anymore. Many analyses indicate the international growth in e-discovery is outpacing U.S. domestic growth.

“This isn’t to say e-discovery isn’t growing in the States. It is. However, not unlike start-up companies growing at a faster rate than established companies, e-discovery is growing faster in jurisdictions where it’s not as ingrained as it is in the United States.

“What it means for e-discovery practitioners on both sides of the Atlantic (and Pacific) is that international concerns, such as data privacy in cross-border data transfers, should be a priority in e-discovery.

“Pyrrho illustrates also that proportionality in e-discovery is an international concept, and that e-discovery cooperation saves litigants time and money. The Pyrrho court noted the parties agreed to the use of TAR, illustrating the software-services symbiosis of an e-discovery service provider—in this case, Millnet— working with a software developer and the law firms in the case.

Andrew Haslam, litigation support consultant, Allvision Computing:

“Pyrrho explains what we in the industry have known for a long time. Using predictive coding / technology assisted review / whatever it is called, is faster, more accurate and a heck of a lot cheaper than human review. Irrespective of the supplier of the technology (this case happened to be using Relativity), it all about the informed application of the tools (Taylor Wessing were supported by Millnet and their team of very well informed consultants). It is also about the rise of a new breed of eDisclosure lawyers, like Taylor Wessing’s Edward Spencer who is name checked in the judgement, who are comfortable in using these tools and realise they enhance their position and not threaten it. I have to admit to a “proud teacher” moment as Ed attended one of my “Introduction to eDisclosure” courses in July 2015 and was kind enough to credit that as the foundation of his current knowledge. The pupil has definitely outstripped the teacher here though.

“The lack of a formal judicial approval has been one of the bulwarks of the resistance by the more luddite of litigation lawyers in using this technology. Pyrrho blows that away and hopefully signifies a sea change in the rate of adoption of the tools and the rise of technology savvy eDisclosure lawyers.”

Adam Kuhn, attorney, Recommind:

“The essential take-away is that Predictive Coding has been judicially approved and defensible in principle. The court evaluated 10 factors in favor of use, including proportionality, and did not list a single factor weighing against the use of Predictive Coding. Principle among the justifications was cost, a keyword that appears 25 times in the 14 page opinion. The court kept returning to the theme of cost control and comparing the costs of manual review to Predictive Coding: “the costs overall of a predictive coding review should be considerably lower.

“Is Pyrrho the Da Silva Moore for the UK? While the language used is more understated than the SDNY opinion, the holding is essentially the same: Predictive Coding is a judicially defensible technology to use in appropriate matters. As with Da Silva Moore, this decision will cast a spotlight to make practitioners more aware of the technology, opening the door to the variety of ways that Predictive Coding can be defensibly deployed and leveraged. We recently published a blog post discussing the many ways Predictive Coding can be flexibly applied for a range of benefits. Pyrrho is sure to enter the case law books as a landmark decision ushering in the use of advanced analytics for eDisclosure, and further opinions will likely follow that will parse issues with protocols and agreement.”

Celina McGregor, senior associate, Herbert Smith Freehills:

“Overall, the case is a welcome decision for those wishing to use predictive coding software. However, it should not be used as a prescriptive or comprehensive guide to predictive coding. In particular:

It is important to understand that Master Matthews’s description of predictive coding software (at paragraphs 19 to 24) is only one type of predictive coding workflow. There are a number of other options available to parties when considering the use of this technology, each with their own benefits and drawbacks in terms of time, costs, accuracy and ability to deal with changes to the issues in dispute. As the High Court’s decision is based on a particular workflow, a number of the comments made by Master Matthews about best practice and the court’s expectation of the technology are particular to the type software used, but not generally applicable.
In the present case, it appears that little further human review will be conducted of the documents produced after the predictive coding exercise is checked and stabilised. This may not be appropriate in all cases, in particular, where the resulting documents are likely to include privileged material, irrelevant documents, confidential material, or a non-party’s personal/sensitive information. Further, while there may be an immediate cost-saving of not reviewing certain documents, disclosing such material may amplify the other parties’ costs and risk an adverse cost order.
Particularly in this sort of case, parties may wish to consider the use of a clawback agreement to minimise concerns about the disclosure of privileged or irrelevant documents. In the US, clawback agreements set out the terms on which the parties will return disclosed documents. The status and enforceability of these agreements is uncertain under English law, but there is scope for argument that CPR 31.B(3)(f) envisages this type of arrangement.”

Taylor Wessing, briefing note:

“Taylor Wessing, as acknowledged by the Master, played a pivotal role in assisting the court in concluding that the case before it was one in which predictive coding should be deployed by the parties during disclosure. In particular, the Master acknowledged the contribution of Mr Edward Spencer of Taylor Wessing in taking the Court through the significant cost-savings that can be achieved by the use of predictive coding. It is to be hoped therefore, that we have seen the birth of a new standard order that will be used in all cases where directions for the use of predictive coding are appropriate.”

Simmons & Simmons, briefing note:

“This decision is welcome, as the use of TAR has to some extent been held back by the lack of express judicial approval for its use. In Simmons & Simmons’ experience, the benefits of accuracy and the saving in time and cost which can be offered are substantial. To get the best out of the technology requires an experienced team, like Simmons & Simmons eDiscovery Solutions Team, who can provide advice and guidance as to the breadth and limitations of technology based reviews.

“It is notable that the parties were agreed as to the use of TAR in this case, with neither side putting forward arguments against it, meaning that a more adversarial consideration of TAR’s merits may yet be heard by the courts. However, given that the cost of disclosure will ultimately fall upon the losing party, it is in neither side’s interests to resist the most efficient means of doing it. A judgment such as this has been awaited by all those keen to see the cost benefits of technology brought to the English courts (see our article Disputes: What is coming in 2016?) and should allow commercial parties to use TAR with confidence.”