UK court approves use of predictive coding for e-disclosure

A UK court has approved for the first time the use of predictive coding as a basis for determining which electronic documents are relevant to a dispute.

The High Court in London sanctioned its use in a multi-million pound dispute where more than 3 million electronic documents have to be assessed to determine whether they are relevant and disclosable.

Master Matthews, who gave the judgment, said the use of predictive coding in the case "would promote the overriding objective" of the Civil Procedure Rules, which is that courts should seek to "deal with cases justly and at proportionate cost". He said, though, that "whether it would be right for approval to be given in other cases will, of course, depend upon the particular circumstances obtaining in them".

Litigation law expert Michael Fletcher of Pinsent Masons, the law firm behind Out-Law.com, welcomed the decision and said that, if anything, it is surprising it has taken so long for an English court to sanction the use of predictive coding as a means for meeting electronic disclosure requirements.

"This may be a vision of the future, but also a rather belated approval of the tools that tech-savvy litigators already have at their disposal and have been using to assess cases and in arbitration," Fletcher said. "I don't therefore see this ruling as opening the floodgates for predictive coding, as cases will need to be of a certain value and have sufficient quantities of electronic documents to make it viable. However, it may encourage parties to consider predictive coding in High Court standard disclosure exercises going forward."

Predictive coding is the use of software to review the majority of electronic documents in a disclosure exercise, instead of human beings. The software is programmed to account for findings made by senior lawyers who have reviewed a sample of the documents; those lawyers 'train' the document review platform as to what documents are likely to be relevant. Having been 'trained', the software then analyses the remaining documents and identifies their relevance to issues in the case,. The senior reviewers subsequently review further samples as a quality control process, determining whether the software has correctly identified relevant documents. This process will iteratively improve the quality of the 'training' until an acceptable level of accuracy is reached..

Fletcher said predictive coding can potentially save businesses involved in litigation both money and time in major e-disclosure reviews, and perhaps even be considered more reliable than manual document review.

Master Matthews cited a number of reasons why he was persuaded to sanction the use of predictive coding in the case before him. He said that predictive coding had been shown to be "useful in appropriate cases" in other jurisdictions already. He referenced cases in the US and Ireland where predictive coding had been used for e-disclosure purposes.

The Master said there is "no evidence to show that the use of predictive coding software leads to less accurate disclosure being given than, say, manual review alone or keyword searches and manual review combined".

Predictive coding will offer "greater consistency" in applying an approach to document review defined through senior lawyer sampling, rather than would be the case with many junior lawyers or paralegals independently applying "the relevant criteria in relation to individual documents", Master Matthews said.

The Master also said the English civil procedure rules do not prohibit the use of predictive coding software. He found that its use in this case was merited in part because of the "huge" number of "electronic documents which must be considered for relevance and possible disclosure" in the case before him and because it would be "far less expensive" to use predictive coding software than to proceed with manual searching of documents in the case.

The cost of using predictive coding software was deemed to be "proportionate" to the value of the claims at stake in the wider litigation, the judge said. He said that there is "plenty of time to consider other disclosure methods if for any reason the predictive software route turned out to be unsatisfactory" in the case before him because the trial in the case is not scheduled until June 2017. The final factor weighing in favour of using the tool was that all the parties in the case had agreed on using the software and the way it is to be used. Michael Fletcher notes that this "highlights the benefits that can result from parties collaborating early on disclosure and seeking to find common ground on how to proceed in a cost-effective but robust way".

Copyright © 2016, Out-Law.com

Out-Law.com is part of international law firm Pinsent Masons.