Any lawyer is anxious when he or she steps into untested waters. So adopting new technology – even when the benefits seem self-evident – is seen as a risk. So any court approving new and developing techniques such as Technology Assisted Review (‘TAR’) is a welcome development. It shows that the courts recognise the cost and efficiency benefits that the technology brings.
Where disclosure is ordered, collating the relevant data is not a major issue. The crux of the problem in any disclosure exercise is the sheer time and cost involved in trawling through thousands of documents manually. By using TAR, we can dramatically shrink the pool of documents to be searched, resulting in significant cost and time savings. The case of IBRC & Ors v Sean Quinn & Ors1 demonstrates this perfectly. It also provides confirmation that the courts are willing to accept the use of electronic disclosure tools as part and parcel of the disclosure arena.
Facts of IBRC
This case is part of a wider dispute between the two parties regarding loans advanced to the Quinns to allegedly prop up the share price of IBRC. As part of the main case, disclosure was ordered by the Supreme Court of Ireland. The Claimant, IBRC, collated the relevant documents, and used keyword searching to reduce the size of the document pool to around 680,000 documents. IBRC estimated that a traditional manual review of these documents would take ten lawyers approximately 9 months to complete, at a cost of €2,000,000. The Defendants contested this figure, asserting that the review could be completed in less than 4 months at the far lower cost of €220,000. An expert acting for the Claimant attempted to find a middle ground, and highlighted to the parties that predictive coding could be used to dramatically reduce the size of the document pool to be reviewed, resulting in as little of 10 per cent of the original pool requiring manual review.
IBRC decided to proceed with a predictive coding TAR and created a draft protocol for its use. To ensure legitimacy and transparency, IBRC invited input from the defendants on this draft protocol. However, the defendant ultimately refused to consent to the use of TAR. As a result IBRC went to the Irish Court seeking judgment as to whether or not TAR complied with their rules on discovery, and what, in the Court’s opinion, was the most appropriate way to use the technology.
Fullam J noted that there was no specific rule in relation to TAR in Irish Law. He also emphasised that time, cost and complexity should not be a barrier to discovering the truth. However, he acknowledged that even if the effectiveness of a TAR was deemed to be equal only to, and not better than, a manual review, the use of TAR would still bring cost and efficiency benefits. He further expressed that “…provided the process has sufficient transparency, TAR using predictive coding discharges a party’s discovery obligations under [Irish Court rules]”. Fullam J then considered the draft protocol proposed by the claimant and, subject to a small amendment, found that this was suitable for creating transparency and mitigating any potential problems with a non-manual review. The Judge concluded by saying: “I am satisfied that the proposed protocol will be more efficient than manual review in terms of saving costs and saving time.”
The Irish judiciary had a keen sense of the cost and time benefits of using TAR. While this is not a judgment of a UK Court, it illustrates the shifting attitude of the judiciary towards using technology where it helps adhere to the principle of proportionality, particularly where an action is particularly document-heavy. This follows the trend in the United States, where, according to a recent case, “the case law has developed to the point that it is now black letter law that, where the producing party wants to utilize TAR for document review, courts will permit it” (Rio Tinto PLC v. Vale S.A). Given the recent upheaval to the English judicial system with the implementation of the Jackson reforms, which require proportionality to be a key consideration in litigation proceedings, it is anticipated that the English Courts will take a similar view to that of Fullam J.
One should also be mindful however, that the Court ruled that use of TAR should be used in consultation with both parties. This will help to ensure that appropriate safeguards are in place to minimise potential errors when man and machine need to work in tandem.
1 Record number 2011 5843 P – IEHC citation not yet available
- Big data
- Interrogation of big data
- eDiscovery: focus on deduplication
- eDiscovery: focus on predictive coding
- Focus on concept clustering
- eDiscovery – Using Keywords to Find the Needle in the Haystack
- Focus on Communications Mapping
- Focus on proactive uses for eDiscovery