A recent decision of the High Court in the Republic of Ireland has endorsed the use of predictive coding for a disclosure exercise, rejecting the opposing party’s insistence on a linear manual review of all the keyword responsive documents and its arguments that this form of technology assisted document review was not compatible with the relevant disclosure obligations: Irish Bank Resolution Corporation Limited & Ors v Sean Quinn & Ors  IEHC 175.
Predictive coding has been endorsed and even advocated by the US courts since 2012. US case law has moved beyond Magistrate Judge Andrew Peck’s initial decision in Da Silva Moore v. Publicis Group, 287 F.R.D. 182 (S.D.N.Y. Feb. 24, 2012) agreeing to the use of predictive coding (which was the main decision referred to by the Irish High Court) to his more recent 2015 decision in Rio Tinto Plc v. Vale S.A., 1:14-cv-3042 (S.D.N.Y. Mar. 2, 2015) in which he remarked that “In the three years since Da Silva Moore, the case law has developed to the point that it is now black letter law that where the producing party wants to utilize [technology assisted review] for document review, courts will permit it.”
To date, however, predictive coding has been used relatively infrequently in English litigation, though Herbert Smith Freehills has used it in a number of matters on behalf of our clients. The recent Irish decision appears to be the first endorsement of the technology by courts in Europe. Celina McGregor, a senior associate in our London office, and Alan Simpson, deputy practice group lead (Disputes) in our Belfast office, outline the decision below. Read more from their post.