13 March 2015
Innovation in Discovery Management: A Landmark Judgment of the Commercial Court
In a landmark judgment1 the Commercial Court has confirmed that parties can use technology assisted review (“TAR”) to reduce discovery costs and speed up the process of making discovery. The court approved a methodology developed by McCann FitzGerald with our client and experts for the use of TAR.
Technology Assisted Review
TAR is a process for coding a collection of documents using a computerised system that captures human judgments of one or more subject matter experts on a smaller set of documents and then extrapolates those judgments to the remaining documents. The number of electronic documents requiring review can be reduced very efficiently using TAR within much shorter timeframes compared to an exhaustive manual review.
TAR has been confirmed as an acceptable method for the management of large discoveries in the US for some time but the Irish courts had not previously considered this method of making inter party discovery.
The Court was asked to consider:
- Whether Technology Assisted Review complied with the Rules of the Superior Courts for discharging a party’s discovery obligations, and
- If so, to determine the most appropriate methodologies to be used.
Mr Justice Fullam confirmed that:
- Discovery made using TAR, properly conducted, is an appropriate discharge of a litigant’s discovery obligations under Order 31, Rule 12 of the Rules of the Superior Courts 1986 (as amended);
- TAR comprising predictive coding is likely to be a more speedy, less costly and more accurate method of discovery than manual review; and
- If one were to assume that TAR will be only equally as effective but no more effective than manual review, the fact remains that predictive coding will still allow for a more expeditious and economical discovery process.
The judgment makes it clear that it is incumbent on any party seeking to use TAR for the management of a large discovery exercise to confer with other parties with regard to its use, including sharing key word searches, and to provide an opportunity for other parties to input into the key word searching that will form the basis of the predictive coding exercise.
This is a significant step forward in the management of large discovery exercises. It will enable clients to better manage their discovery costs when dealing with very large volumes of electronic data and is a pragmatic and welcome approach to the better management of commercial litigation.
The judgment cements the importance of collaborative engagement between parties to litigation in the Commercial Court and the protocol that was approved is premised upon the parties adopting a ‘meet and confer’ approach similar to that required in many US states.
Predictive coding is not a panacea and does not rule out the need for manual review, and the solicitor’s role is key in ensuring that a discovery exercise meets the stringent requirements imposed on parties. We should see significant efficiencies in discovery management resulting from this judgment in the longer term.
1 IBRC and Ors –v- Quinn and Ors 2011/5843P Unreported 3 March 2015