chris daleUS Magistrate Judge Andrew Peck has just declined to order an unwilling party to use technology-assisted review in a case called Hyles v New York City. I think that an English court would have made the order in analogous circumstances. I am due to moderate a panel at kCura’s Relativity Fest in October at which English, Irish and US experts will talk about what we can learn from each other on this subject. Judge Peck’s opinion forces a focus on cooperation and the role of the court which are to be our lead topics at our panel. It also draws attention to the role of guides and principles developed outside the rules.

Note for purists: I am well aware that the “UK court” is properly called the High Court of England and Wales. I have a foreign readership to consider with 2,000 words to get through, and I opt for comprehensible brevity over strict accuracy.

US Magistrate Judge Andrew Peck is the leading judicial proponent of the use of Technology Assisted Review. His opinions, notably those in Da Silva Moore and Rio Tinto v Vale, are cited in pretty well every judicial opinion and judgment, and in every academic textbook or paper in the common law world.

On 1 August, Judge Peck declined to order the City of New York to use TAR in a case brought against the city by Pauline Hyles. The Order (you will find it here) ends thus:

The Court would have liked the City to use TAR in this case. But the Court cannot, and will not, force the City to do so. There may come a time when TAR is so widely used that it might be unreasonable for a party to decline to use TAR. We are not there yet. Thus, despite what the Court might want a responding party to do, Sedona Principle 6 controls. Hyles’ application to force the City to use TAR is DENIED.

Sedona is the respected Sedona Conference, originator of the Sedona Conference Cooperation Proclamation and the Sedona Principles to which Judge Peck refers. The reference to Sedona Principle 6 is explained earlier in the judgment as follows:

Cooperation principles, however, do not give the requesting party, or the Court, the power to force cooperation or to force the responding party to use TAR. It certainly is fair to say that I am a judicial advocate for the use of TAR in appropriate cases. I also am a firm believer in the Sedona Principles, particularly Principle 6, which clearly provides that:

Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.

I am not going to walk you through the relevant parts of the Federal Rules of Civil Procedure nor the US cases, not least because that has been done in helpful articles by David Horriganof kCura here and by Adam Kuhn of Recommind (now OpenText) here. They will give you all the facts and context you need from a US perspective.

Jurisdictions learning from others and a cross-jurisdictional TAR panel

My particular interest lies in the interplay between jurisdictions on this subject. I have long rejected the curious assertion that “the US is two years ahead of the rest of the world in eDiscovery”, and recent developments in Ireland and in England and Wales support my long-held view that we can all learn from each other rather than simply copy the US experience. Adam Kuhn (again) ended his recent article on the UK’s BCA Trading case
by saying “The UK continues to rapidly develop a body of case law that could very well leapfrog the US jurisprudence”.

This is not a race, of course. What we might hope for is a gradual evolution of a judicial position which makes objective sense in any jurisdiction and which is clearly understood by those who must advise clients and perform their duty to them and to the court. To that end, I suggested to kCura that we do a panel at Relativity Fest in October which brings together experts in the US, the Irish and the UK position. The result is a panel moderated by me and consisting of:

  • Judge Peck
  • Karyn Harty of McCann FitzGerald (the successful proponent of predictive coding in Irish Bank Resolution v Quinn)
  • Ed Spencer of Taylor Wessing and Dan Wyatt of RPC (the opponents who eventually agreed the terms enshrined by Master Matthews in his Pyrrho judgment).

A couple of hours before I received a copy of the Hyles opinion, I wrote to Karyn Harty saying that I intended to focus on the duty (and merits) of cooperation and on the role of the court. It was interesting, therefore, that Judge Peck should deliver up on cue an opinion in which he focuses on just these issues with his customary crisp brevity.

Court compulsion to give disclosure

Although predictive coding judgments are now falling around us like leaves in Vallombrosa, I hope to avoid turning our panel into a general survey of recent caselaw, nor do I want to do that in this article. I want to focus, as Judge Peck put it in Hyles, on “the issue of whether the requesting party can have the court force the responding party to use TAR”, and to do so beyond the US.

I covered this subject in an article of March 2015 called TAR-red with the same brush in the US and Ireland, written following the coincidental timing that brought us Judge Peck’s Rio Tinto opinion in the same week as the Irish Bank Resolution case.

Focusing on the pre-emptive role of the court, I said:

The trend in most relevant jurisdictions is for pre-emptive interaction with other parties and, if necessary, with the court, before significant sums are incurred in a discovery which may subsequently be challenged…… A UK practice direction and new rules have codified the duty to discuss and to cooperate. Other jurisdictions are developing a similar approach; the court arbitrates any disputes which arise, undermining the idea that the giver gives and the receiver waits to see what he gets before challenging omissions. Indeed, courts are increasingly proactive about this, as the UK courts in particular are required to be by the rules.

What are these rules which require the UK court to be proactive in this way?

Once again, I have been here before and can most easily address this by referring you to an earlier article of my own. It is one called Reacting to the reactions to the Pyrrho predictive coding judgment which, immodestly perhaps, I suggest that you read in full. The part that is relevant to what you might call “judicial activism” is in the section headed The judgment itself – some basic principles which refers to the relevant parts of Part 31 CPR and Practice Direction 31B, referring in turn to the Pyrrho judgment for the detail. I said:

The court has been expressly required to consider the use of technology since the overriding objective in Rule 1 of the CPR of 1999 [it is in Rule 1.4(k)]. That rule also requires that cases be dealt with at proportionate cost [Rule 1.1(1)], and imposes a duty of active case management [Rule 1.4(1)] and the encouragement of parties to cooperate.

I don’t really need to recite all the provisions in Part 31 or Practice Direction 31B, because the judgment does so in cogent fashion. It is worth also, however, focusing on the fact that Rule 31.5 entitles the court to make “any other order in relation to disclosure the court considers appropriate” and to “give directions as to how disclosure is to be given”. All this sits on top of the general case management provision in Rule 3.1(2)(m) which says that the court may “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”. If the court may make any order then the parties may seek any order.

Hyles differs from the other cases. It does not involve a party seeking leave to use predictive coding itself, nor is it the obverse, one party challenging another’s right to use predictive coding. In Hyles, one party sought to force the other to use a particular technology and Judge Peck, for all his appreciation of the time and cost to be saved, felt unable to go that far. Given his careful explanation, and his obvious wish that it were otherwise, it is hard to disagree with him.

Cooperation and judicial management

Judges in England and Wales are required to manage cases actively and must order the most proportionate course. The rules oblige parties to give the court information about the scope of disclosure, the method of achieving it and the costs of alternative approaches, and they are required to try and agree these things in advance. One significant difference between the UK and US positions is that the default UK position is that the winner’s costs are paid by the loser. It is that which gives one party the right to makes demands as to how an opponent’s disclosure is done in circumstances analogous to those described by Judge Peck in Hyles – if X may end up paying Y’s bills then X has the right to influence what those bills are going to be, quite apart from the effect on his own costs.

In my recent video interview with him, Ed Spencer argues eloquently in favour of cooperation because the alternative, as he puts it, is getting an answer from the third party, the judge, which may please no-one. He makes it clear that this may not be easy. Karyn Harty, in my interview with her, emphasises the difficulty often faced in getting agreement in Irish litigation.

What you cannot agree you have to argue for. If a party can present articulate arguments for the use of any particular technology, whether by themselves or by their opponents, the UK courts will be swayed by arguments pointing to the saving of time and costs affecting either or both parties because we have express rules which require the court to consider these things. I suspect the same would be true in Ireland, Hong Kong or Singapore, depending of course on the facts, the case and, perhaps, the judge.

Guides, principles and best practices – evolving as times change 

One of the most interesting things about Hyles is the significance attached by the judge to a set of principles which lie outside the rules, in that case from the Sedona Conference. Ireland has the Good Practice Guide to eDiscovery in Ireland. The UK has the TeSCA / SCL / TECBAR eDisclosure Protocol. These were conceived with the aim of encouraging best practice in a form which could be modified with experience and adapted to take account of both technology and legal developments. Both are persuasive, to put it at the lowest, when cited in court as, indeed, are the Sedona Principles even outside their home jurisdiction.

Retired US Magistrate Judge John Facciola was reported as having said this week that case law which pre-dates the recent changes in the FRCP should be ignored. I suspect that the summary I saw was a rather blunt version of a more nuanced statement, but the point is a good one. It should apply equally to to best practice guides and principles which are more easily modified than rules. Is it time for the Sedona Conference to reconsider Principle 6?

As I have described above, the former UK rules gave the disclosing party an almost unqualified right to decide what it disclosed (within the rules) and how it did it. Although we retain the principle that challenges to another party’s disclosure should take the form of a post-disclosure application for specific disclosure if you are dissatisfied with what you get, the relatively recent rule changes have aimed to head off wasted time and costs by interposing a mandatory assessment by the court at which the method of giving disclosure must be considered. If Sedona Principle 6 is standing in the way of that in the US, perhaps it is time for a more nuanced version, especially since last year’s FRCP amendments gave more early case management powers to the court.

Chris Dale (pictured) is founder of the eDisclosure Information Project and a frequent speaker on the topic of electronic disclosure and eDiscovery matters. You can read his other blog posts on his website