By Brian Allan, Vice President, EMEA at Conduent
And then there were three. As of this week, the UK has now joined the United States and Ireland as jurisdictions with judicial decisions supporting the use of technology-assisted review (TAR).
In Pyrrho Investments Ltd. v. MWB Property Ltd., a case before the High Court of Justice—Chancery Division, a party faced the daunting task of reviewing 3.1 million files from backup tapes. The parties had agreed to use TAR as their document review tool and approached the court seeking its approval.
Noting that no case law had yet spoken on the issue of automated review, the court turned to the disclosure rules set forth in Practice Direction B, which support the use of “automated methods of searching if a full review of each and every document would be unreasonable.” The court also quoted extensively from U.S. Magistrate Judge Andrew Peck’s decision in Da Silva Moore v. Publicis Group, particularly his discussion of proportionality.
In upholding the parties’ use of TAR, the English court cited 10 factors:
- Other jurisdictions have found that TAR “can be useful in appropriate cases.”
- No evidence shows that the results of TAR are less accurate than manual review, and the opposite seems to be true.
- An algorithm applying a senior lawyer’s logic to the documents is more consistent than using that of “dozens, perhaps hundreds, of lower-grade fee-earners, each seeking independently to apply the relevant criteria in relation to individual documents.”
- Nothing in the applicable disclosure rules prohibits the use of TAR.
- The case involves a huge number of electronic documents.
- The cost of manual review would amount to at least several million pounds, making it unreasonable “at least where a suitable automated alternative exists at a lower cost.”
- The costs of TAR are significantly less than the full manual alternative.
- The costs of using TAR are proportionate to the amounts at issue.
- The parties have more than a year before trial, giving them ample time to re-evaluate their methods should TAR prove unsuccessful.
- The parties agreed to use TAR as well as the methodology for applying it.
Not only does the Pyrrho decision affirm that TAR is here to stay, but it also underscores the importance of technology for ensuring that litigation remains proportionate. The court reviewed a primary “problem” of e-disclosure: “how the parties and (if disputed) the court determines what the scope of that search of ESI should be, how it is going to be made proportionate and how it is going to be carried out correctly [the] first time, without the court having to order it to be done again.” Given the increasing emphasis on proportionality in the procedural rules of courts around the world, including the amended Federal Rules of Civil Procedure, it may become increasingly difficult for parties to argue against the use of TAR in defensibly managing the burden of eDiscovery.