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Legal 10.31.16 BLOG 

TAR in the UK Courts—Building on US Jurisprudence Across the Pond

By Dan Meyers and Al-Karim Makhani

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TAR in the UK Courts—Building on US Jurisprudence Across the Pond

Whilst English case law on Technology Assisted Review ("TAR") is still behind the US, two recent English decisions in favour of TAR – Pyrrho Investments Ltd v MWB Property Ltd and Brown v BCA Trading – show that the UK courts are quickly catching up.

Pyrrho, England's first decision on TAR, relied heavily on jurisprudence from the US (the Southern District of New York decision in Da Silva Moore v Publicis Groupe & MSL) and Ireland (Irish Bank Resolution Corporation Ltd v Quinn). Master Matthews cogently explained TAR in the knowledge that the process was unfamiliar to the English court. At its simplest, a senior lawyer reviews a sample of the universe of documents. She/he trains the computer by categorising these documents. The system analyses this decision making and categorises the universe. The results are refined through subsequent reviews by the senior lawyer based on statistical sampling.

After the electronic documents in Pyrhho went through an initial culling process, there were still 3 million documents requiring review. As the time and cost of performing a traditional review would have been disproportionate to the claimed amount, the parties came to a mutual agreement on the use and scope of TAR (as envisaged by CPR Practice Direction 31B – Disclosure of Electronic Documents). In his judgement, Master Matthews outlined the following 10 principles in favour of using TAR:

  • "Experience in other jurisdictions, while so far limited, has been that predictive coding software can be useful in appropriate cases.
  • There is no evidence to show that the use of predictive coding software leads to less accurate disclosure being given than manual review alone or keyword searches and manual review combined.
  • There will be greater consistency in using the computer to apply the approach of a senior lawyer towards the initial sample (as refined) to the whole document set, than in using dozens, perhaps hundreds, of lower-grade fee-earners, each seeking independently to apply the relevant criteria in relation to individual documents.
  • There is nothing in the CPR or practice directions to prohibit the use of such software.
  • The number of electronic documents which must be considered for relevance and possible disclosure in the present case is huge, over 3m.
  • The cost of manually searching these documents would be enormous, amounting to several million pounds at least. In my judgment, therefore, a full manual review of each document would be 'unreasonable' within paragraph 25 of practice direction B to part 31, at least where a suitable automated alternative exists at a lower cost.
  • The costs of using predictive coding software would depend on various factors, including importantly whether the number of documents is reduced by keyword searches… of course there may be additional costs if manual reviews still need to be carried out when the software has done its best.
  • The 'value' of the claims made in this litigation is in the tens of millions of pounds. In my judgment the estimated costs of using the software are proportionate.
  • The trial in the present case is not until June 2017, so there would be plenty of time to consider other disclosure methods if for any reason the predictive software route turned out to be unsatisfactory.
  • The parties have agreed on the use of the software, and also how to use it, subject only to the approval of the court.

There were no factors of any weight pointing in the opposite direction."

Whilst Pyrrho caused a stir in the legal press, many in the industry still questioned its overall impact. Since the parties had come to an agreement, no arguments against TAR were proffered. Brown v BCA Trading put that issue largely to rest. In Brown, the Petitioner objected to the Respondents giving disclosure using TAR. Mr Registrar Jones was persuaded by the Respondents' argument that TAR could save substantial cost (up to £200,000).Additionally and more importantly, he accepted that all but of the other Pyrrho factors applied (4 being neutral and 10 being inapplicable). He ordered the parties agree on the process for TAR.

Given the growth of TAR decisions in the US, it is no surprise that those decisions are often detailed and technical in nature. However, when taken as a body of law, they are consistent with the principles recently set forth by the English courts. Furthermore, courts in England have an active role in managing cases. This is integral to giving effect to the overriding objective, which judges are duty bound to do. Many within the court system are investing time into understanding TAR, and actively encouraging parties to use it in appropriate cases. Practitioners need to be equally up-to-speed so as not to be blindsided by progressive, well-prepared opponents. It is commonplace for adverse costs to be ordered against litigants – even successful ones – for breaching case management directions. Considering the savings involved as well as the many qualitative benefits, failure to use TAR where appropriate could prove very costly.

TLS is "Best in Service" for Relativity Assisted Review, our TAR platform. Through this technology we have saved clients in excess of £1.5 million. Our technology is complemented by an experienced team: Dan Meyers, President of Information Governance at TLS, was previously a litigation Partner and the Chair of the eDiscovery practice group at the law firm Bracewell & Giuliani LLP in New York. Al-Karim Makhani, Senior Case Consultant, was previously a senior litigation associate at Stephenson Harwood LLP in London.

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