The recent judgment in the case of Pyrrho v MWB [2016] EWHC 256 (Ch) has approved the use of 'predictive coding' in the disclosure process for the first time in the English courts. This is a significant development in demonstrating the willingness of the court to support innovative approaches to a process which can amount to a significant proportion of litigation costs and deter clients from proceeding with otherwise meritorious litigation. Predictive coding has been used widely in US litigation and was recently approved in the Irish courts in Irish Bank Resolution Corporation Ltd & ors v Quinn & ors [2015] IEHC 175.
Conventional litigation support software is aimed at speeding up the process of lawyers and paralegals reviewing all potentially relevant documents. Techniques such as keyword searches try positively to identify potentially relevant documents. By contrast, predictive coding (or computer assisted review) is more focused on identifying and discarding a large corpus of irrelevant documents, enabling the reviewers to focus on a core set of documents most likely to be relevant.
Approaches to predictive coding vary in detail. In general terms a lawyer will train the predictive coding software on a sample set of documents. The software is then let loose on the rest of the documents to analyse and rank them by potential relevance. A typical process can be summarised as follows:
In cases involving vast numbers of electronic documents (the Pyrrho case itself concerns 3.1 million reviewable documents), this process can make disclosure more manageable, increase the accuracy of the exercise (when compared to the more traditional methods of document selection such as using key-word searches) and – perhaps most importantly – save significant cost and time.
Practitioners have previously been reluctant to use predictive coding software due to:
The Pyrrho judgment has now approved the use of such software in principle which largely dispenses with the second concern. This approval is more likely to make law firms dip their toe in the water to see what predictive coding can do and assess its efficacy against the more old-fashioned human review.
As with any disclosure process, but particularly one involving the use of technology, the process of predictive coding takes planning and engagement at the start. It also requires care to ensure that the process is properly implemented and logged so that what was done and all decisions made can be explained and, if necessary, defended later.
Even less sophisticated methods have the potential to cause problems, as can be seen from the following cases:
The Courts already expect practitioners to give careful consideration (even at the outset of proceedings) to the approach and method to be applied to the disclosure stage – particularly for heavyweight cases involving significant amounts of electronic documents. Given the Pyrrho judgment it can be anticipated that predictive coding will feature more strongly among the options that should be considered, at least for very large disclosure exercises. It is indeed encouraging and welcome that this decision raises the prospect of a more cost effective and practical approach to one of the most costly and time consuming aspects of litigation although the costs of the exercise may make this a more realistic option for very large disclosure exercises.