Guest post: Reacting to the reactions to the Pyrrho predictive coding judgment
My reaction to the judgment in Pyrrho?
About bloody time too.
There, that’s that done.
Oh. You want more than that. Um..
Because, as you know, I spent my whole life looking at Twitter, I saw Taylor Wessing’s story about the predictive coding judgment in Pyrrho Investments Ltd v MWB Property Ltd & Ors  EWHC 256 (Ch) (16 February 2016) as soon it came out. I am not generally much bothered about being the bearer of “Breaking News!!”, but it seemed right to drop everything and push out a quick post passing on the story. I had written it before Edward Spencer at Taylor Wessing (who emerges as the hero of this story, if heroes are what you want) kindly sent me a copy of the judgment and, although I attached it to my post, my article was written without the benefit of reading it properly – there is only so much time you can give, even to a new judgment, when you are sandwiched between two big foreign trips, and I knew anyway that the judgment would launch a deluge of articles from others.
I decided instead to stand back, watch the other reactions rush past, and take a considered view.
Recommind and Xerox Legal Services gave straight-up-and-down reports, focusing sensibly on the ten points which Master Matthews set out at the end of his judgment – credit to the Master, by the way, for this kind of bullet point summary.
Gordon Exall did his usual expert filleting of the judgment saying that “this judgment provides a readily-accessible guide to predictive coding”.
Legaltech News and kCura focused on the parallels between US and UK developments in eDisclosure / eDiscovery; the author of one and the primary contributor to the other was the learned David Horrigan who was also the primary source for a Bloomberg BNA article.
Where these articles seemed to draw the conclusion that the UK was learning from the US, Phil Favro of Driven took a different tack, concentrating on the reverse proposition – that the US has learnt, and can continue to learn, from the UK, particularly with regard to cooperation.
Bill Dimm at Clustify took the opportunity to delve into statistical analysis with charts purporting to show comparisons between various technologies and humans performing manual review. If this level of technical and statistical detail is your main plank in a proportionality argument you may want to rethink the strategy.
John Tredennick and Bob Ambrogi at Catalyst looked at some comparative TAR technology.
Legal Technology Insider helpfully gathered comments from a number of people including Andrew Haslam and Celina McGregor of Herbert Smith Freehills.
I don’t disagree, much, with any of this, but it is perhaps helpful to go through some of these comments, as well as the judgment itself, to see if we can draw any lasting conclusions from the froth and excitement.
The judgment itself – some basic principles
Since my theme here is that this kind of order could have been sought and given in any appropriate case in England and Wales since anyone first thought of applying predictive coding technology to disclosure / discovery, it makes sense to point first to some general principles in the rules.
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.
Delving more critically
If it is not clear already, I thoroughly approve of this judgment, and anything below which seems to suggest otherwise does not detract from its importance.
If the Master did indeed see “primitive versions of this kind of process” in the mid-80s, then he was somewhat ahead of the rest of us. I was learning how to do command-line Boolean searches in the then new ZyIndex in the mid-80s and that seemed terribly sophisticated (as indeed it was by the standards of the time). One might also take issue with the statement “that the term ‘predictive coding’ is used interchangeably with ‘technology assisted review’, ‘computer-assisted review’, or ‘assisted review’”. Strictly, predictive coding is a specialist subset of the other terms, which embrace a very wide range of capabilities.
What is described is indeed one form of predictive coding which leads to the next point (ably made by Celina McGregor in the Legal Technology Insider article). She says:
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.
I see some dangers in baking into a judgment (especially one which is bound to be used as a precedent, or at least an example) a description of workflows etc which are not shared by other, equally good, applications. There is no point, however small, which will not be taken by the last-ditchers of the print-and-read school of discovery practitioners.
Goodale v Ministry of Justice
Then there is Goodale – Goodale & Ors v The Ministry of Justice & Ors  EWHC B41 (QB) (05 November 2009) to give it its proper name. Master Matthews quotes six full paragraphs from Goodale (out of only 28) and then says:
“So the Senior Master certainly contemplated that specialist software might be brought into play to score the hundreds of thousands of anticipated e-documents for relevance and therefore possible disclosure in the proceedings. But so far as I am aware he said no more than that.”.
Of course he did not. Goodale took place at an earlier stage in the proceedings when the parties were arguing about the broad scope of disclosure and had not yet turned their minds to the manner of achieving it. But the then Senior Master Whitaker was far ahead of his time and his peers in his knowledge of what was possible with technology, and what he said about its use was anticipatory of a stage yet to be reached.
Andrew Haslam is quoted in the Legal Technology Insider article as saying this:
“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.”
That is the common view. I have always thought it a wrong view (that is, Andrew Haslam’s statement is a correct summary of a wrongly-held view). The only reason that there has not been a published “judicial approval for using these technologies” is that their use has not been argued properly in a hearing which led to a published judgment.
Does this matter anyway? In an article called Tar-red with the same brush in the US and Ireland (which considered US Magistrate Judge Andrew Peck’s Rio Tinto Opinion and Irish Bank Resolution Corporation v Sean Quinn), I said this:
We know that some American lawyers won’t scratch their bottoms unless some judge, in some case, in some court, in some state, has given his or her blessing not only to the act but to the method; the rest of us, however, prefer the idea that, if a dispute has to come to court, the judge will weigh the facts in that case and do what is right for that case. The most infuriating question I am asked in the UK is whether any judge has approved the use of TAR. If one has done so, it doesn’t bind the judge in the court next door with a different case and a different proportionality balance to strike. If none has, then so what? If it is right for your case – if it will allow you to give proportionate disclosure in the most proportionate way without undue risk of inadvertent omission – then use it or, at least, equip yourself to weigh its benefits against other ways of achieving the objective.
So, don’t wait for some judge, in some case, in some court to approve any particular technology – there are relatively few judges (Judge Peck is an obvious exception) who are able to understand it all anyway. That is not the point. Look at the problem you have to solve and at the base obligations in the rules – when I say “look at the rules” I mean look at what they mean and not just what they say, including the discretionary power of the court to do what is right and what is proportionate – and then set up some demonstrations. If you can still say that the use of technology-assisted review is per se unacceptable I shall be very surprised.
Whether it is acceptable in your case depends on a set of calculations which, in the UK at least, you are now required to do anyway, both for the costs estimates required by Rule 31.5 and for costs budgets.
In other words, while Pyrrho is very nice to have, it has been open to any party in a suitable case to argue for the use of predictive coding by reference to the base obligations (mainly dating back to 1999) set out above and in Goodale of 2009.
Is this the first approval anyway?
Whatever you think of Goodale as an authority, and however important Pyrrho is, it is not the first case in which the court has approved the use of technology of this kind. Vince Neicho of Allen & Overy was quick to point out that his firm used predictive coding in a Commercial Court case, with the blessing of the judge and the opposing party, back in 2009. The order was made as part of the directions hearing and did not form part of a formal public judgment. Hundreds of judgments are made every week in such hearings and are not reported. I can’t say how often, but if those presenting the arguments to Master Matthews had been able to search across every judgment made (as they did across the publicly available ones), I think they would have found more.
As I say, I don’t think that matters anyway – you don’t decide what is right and proportionate in this case by reference to what happened somewhere else in a different case.
That again (I must keep on stressing) is in no sense a criticism of the Pyrrho judgment.
The UK now follows the US? Does it really?
Those who follow me on Twitter will have detected rumblings from me on a different aspect of Pyrrho, one that has nothing to do with the judgment itself. I have to be careful here, but I really can’t accept that Pyrrho indicates that the UK is coming round to the US approach to eDiscovery as some have asserted. Something got lost in the editing process, perhaps.
My early attempts to persuade UK lawyers to adopt technology and to move to electronic disclosure were constantly met by lawyers saying “Pah! Electronic discovery – that’s what Americans do, and look what an expensive mess they make of it”.
It was that which first sent me to the US in 2007 where I discovered that, while this observation entirely missed the point, it was not untrue.
It was there that I came across the nonsensical expression “the US is two years ahead of the UK in electronic discovery”. At a dinner in that first week in the US, a rather patronising American lawyer asked my neighbour “What can you British learn from our new rules?”. My compatriot’s answer, stripped of its colourful language, was that we had had new rules (the original Practice Direction 31) for more than 12 months before the FRCP Amendments, and did not consider that we had anything to learn from a jurisdiction in which discovery was so deliberately bloated, expensive and full of unnecessary strife.
My strongest attack on the US view of everyone else’s eDiscovery came in an article of last year called Contrasting “that whole truth and justice approach that us Yanks have” with the rest of the world. Really? I can save myself some invention now by repeating what I said there:
The UK has a few rules of its own, and the rest of the world seems to appreciate them.
I will resist the temptation to assert the merits of the eDisclosure elements of the Civil Procedure Rules of England & Wales – the Practice Direction which preceded the 2006 FRCP Amendments by 12 months; the ditching in 1999 of “train of enquiry” discovery as the FRCP will do later in 2015; the express primacy of proportionality and the judicial duty of active management, both in the UK rules since 1999 and both only now creeping into US discovery thanks to a handful of thoughtful judges; the civil procedure rules which every common law country except the US has accepted as the basis for their own. All this can speak for itself, and we do not need to crow on our dunghill about its merits.
Of all the US comment on Pyrrho, the article by Phil Favro is the only one which acknowledges that the US has much to learn from the UK, particularly with regard to cooperation.
The truth is this: the rest of the world does not like US eDiscovery; its excesses are one of the reasons why other jurisdictions have been so slow to take up the many advantages of electronic management of documents, and its big boots are one of the reasons why cross-border transfers of data for discovery purposes have been such a big factor in the current privacy battles.
The excesses of US discovery have, however, brought us the rest of us one very good thing – the software tools, processes and skills which have developed in reaction to the demands of US discovery. When coupled with the rules of the UK (and some other non-US common law jurisdictions) these tools deliver a powerful way to compromise between an acceptable level of accuracy and an outlay which is warranted by the case. That balance is called proportionality, and you heard of it here in the UK first.
It is also wholly right to acknowledge the impact of a handful of US judicial opinions, and especially those of US Magistrate Judge Andrew Peck, in encouraging the use of new technology like predictive coding, when coupled with a proper degree of cooperation, to achieve that proportionality balance. Judge Peck’s opinions are cited in every common-law jurisdiction, and rightly so.
That is a very different thing from asserting that the UK is now in any sense moving towards an acceptance of US eDiscovery as a whole.
The Pyrrho judgment is as important as is suggested by all the articles referred to above. It was entirely right of the parties first to cooperate and second to seek judicial approval for the agreement.
That approval, however, ends quite rightly with the following words:
I considered that the present was a suitable case in which to use, and that it would promote the overriding objective set out in Part 1 of the CPR if I approved the use of, predictive coding software, and I therefore did so. Whether it would be right for approval to be given in other cases will, of course, depend upon the particular circumstances obtaining in them.
Not only is this technology not for every case, but as Celine McGregor points out, this judgment has elements which are peculiar to the software used. The message is one I repeat often: get out and look at a range of these tools so that you can articulate a proper course to the court as Taylor Wessing did in Pyrrho.
It is excellent that we now have this judgment, which will at least put an end to the head-under-the blanket whining about “black boxes” which one hears from so many lawyers who are very happy with the methods (and the fees) which have served them well hitherto. Pyrrho takes that excuse away from them. The key point from this case is that the parties, and in particular Edward Spencer of Taylor Wessing, argued cogently from first principles that the use of predictive coding would save costs and be proportionate. I refer you again to Master Matthews’ ten points at the end of his judgment.
Chris Dale 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 https://chrisdale.wordpress.com