Using computer technology to assist with e-disclosure has always promised to reduce time and cost. For some years, computer software has been available to assist with the review process and now finally it is making an appearance in the UK.
In the latest edition of the Commercial Litigation Journal (Sept/Oct 2016), Lamb Chambers Barrister David Sawtell reviews the state of the law, the latest guidance from the courts and what litigators will need to know to get up to speed with computer assisted review.
In the US and in other jurisdictions, computer assisted review through tools such as predictive coding has received endorsement from the courts and become an accepted part of litigation practice in more substantial cases. Up until this year, however, the English courts have not given practitioners a steer as to whether this is acceptable practice, let alone what process to follow.
When a party adopts predictive coding, its legal team ‘trains’ the software to carry out the review process by having it ‘watch’ a senior lawyer review a sample of documents. This process is repeated a number of times until the software has learned the review process to within an acceptable tolerance.
In two cases in the High Court, we now have a clearer idea as to what the courts will be looking for. In Pyrrho Investments Ltd v MWB Property Ltd  EWHC 256 (Ch), Master Matthews explained why the court had approved predictive coding. This was followed by Brown v BCA Trading Ltd  EWHC 1464, where Registrar Jones approved this process in a contested case.
Cost and proportionality played a significant role in the decisions. Parties will still need to consider, however, what to do about inadvertent disclosure of privileged documents. Although in the US parties can entered into ‘clawback agreements’ for the return of such documents, their use in England is untested.
For more information, or to read a copy of the article itself, please contact David Sawtell’s Clerk on 020 7797 8300 or email David at DavidSawtell@lambchambers.co.uk .
Article reference: ‘A binary breakthrough’, Commercial Litigation Journal, September / October 2016, 6-7
David Sawtell / 4th Oct 2016
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