Manual disclosure review ordered due to concerns over party’s computer assisted review

In a recent High Court decision, the court expressed concerns regarding the claimants’ computer assisted disclosure review and ordered them to carry out a manual review of a substantial number of documents that had been excluded from review on the basis of a computer assisted sampling of the documents: Triumph Controls UK v Primus International Holding [2018] EWHC 176 (TCC).

In a number of judgments in recent years, the courts have given in principle approval of computer assisted reviews (CAR), including predictive coding (see here and here). The present decision illustrates that the court is prepared to delve into the detail of how such programmes have been set up and used in order to assess the adequacy of a party’s disclosure.

It also serves as a reminder of the importance the courts place on transparency in such processes. Where a party fails to engage with its opposing party adequately in advance of designing and carrying out its disclosure searches, it risks being ordered to redo some or all of the review, even if that involves substantial additional time and costs. Continue reading

Predictive coding ordered despite party’s objections

The High Court has ordered disclosure to be carried out using predictive coding despite a party's objections to the use of the technology: Brown v BCA Trading Limited [2016] EWHC 1464 (Ch).

This is understood to be the first reported decision in which the English courts have approved the use of predictive coding following a contested application. A decision in February this year had endorsed the use of the technology for a large disclosure exercise, but in circumstances where the parties had already agreed on its use (Pyrrho Investments v MWB Property [2016] EWHC 256 (Ch) – see our blog post on that decision which also explains more about predictive coding).

The present decision illustrates that the comparative costs between predictive coding and keyword searching are likely to be a significant factor in determining whether it should be ordered. It also suggests that, where there is a dispute as to whether predictive coding is appropriate, the court may take particular account of the views of the party who holds the lion's share of the documents and therefore will have the greater burden on disclosure.

Judgment was given in May this year and the case was reported in the legal press but a transcript has only become available more recently (on Westlaw).

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Use of predictive coding for e-disclosure endorsed by English High Court

A decision of the English High Court handed down yesterday has expressly approved the use of predictive coding (also known as technology assisted review) for a large disclosure exercise: Pyrrho Investments Limited & Anr v MWB Property Limited and Others [2016] EWHC 256 (Ch).

Based on the US's experience, this case will likely mark a turning point for the use of predictive coding in England and Wales. It took the US less than three years from the date of its first judicial approval to reach 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.” Rio Tinto Plc v Vale SA, 1:14-cv-3042 (S.D.N.Y. Mar. 2, 2015).

As noted in Master Matthews's decision, predictive coding has been used relatively infrequently in English litigation. However, Herbert Smith Freehills is among a small number of firms that have already employed the technology in large-scale disclosure exercises in England. While judicial endorsement is not a pre-requisite for a party's use of predictive coding software, Master Matthews's decision is welcome in confirming the benefits of the technology in appropriate cases in England and Wales.

Celina McGregor, a senior associate in our London office, considers the decision below.

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Irish court endorses use of predictive coding for disclosure

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 [2015] IEHC 175.

Predictive coding has been endorsed and even advocated by the US courts since 2012. In this period, 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. Continue reading

Court of Appeal finds clear breach of unless order for e-disclosure

The Court of Appeal has held that claimant liquidators were in breach of an “unless order” for e-disclosure, overturning the High Court’s decision that there was no breach despite the mistaken omission of certain important categories of documents from the list: Smailes v McNally [2014] EWCA Civ 1296. The result was that the liquidators’ claim was struck out. (Note: The case was decided at the end of July but the transcript has only recently become available.)

The High Court’s decision in this case had suggested that the court might be slow to find a breach of an unless order for disclosure based on omissions from the list. In particular, it seemed to indicate that so long as a search for disclosable documents was carried out in good faith and was fair and proportionate, the court was unlikely to find there was a breach just because some documents were missed. In contrast, the Court of Appeal has concluded that the omission of a highly relevant category of documents, which the liquidators knew were disclosable and had promised to disclose, was a clear breach of the order. The absence of bad faith did not necessarily mean that the order was complied with; the question was whether a reasonable search had been conducted.

The Court of Appeal’s decision suggests the courts might be readier than it had seemed to find that a party is in breach of an unless order for disclosure. However, it remains unlikely that showing some documents have been missed will be enough, in itself, to establish a breach, particularly where there are disputes about the existence or relevance of further documents. This case was quite unusual in that the liquidators had admitted that important documents existed and had promised to disclose them. James Farrell and Maura McIntosh outline the case below. Continue reading

Article published on recent themes in e-disclosure

Gregg Rowan, Celina McGregor, Johan Botha and Lyn Harris have published an article in the November edition of PLC Magazine which looks at the impact of the Jackson reforms on e-disclosure and how parties can seek to control the costs of the process. The article considers advances in review techniques, including predictive coding, as well as alternative ways of structuring the document review exercise. You can download a PDF of the article here: E-disclosure: The state of the art.

High Court finds party not in breach of “unless order” for e-disclosure as result of errors in list

In a recent decision the High Court held that a party was not in breach of an “unless order” for e-disclosure as a result of the mistaken omission of certain categories of documents from the list and a failure to identify certain documents in sufficient detail: In the matter of Atrium Training Services Limited [2013] EWHC 2882 (Ch).

As the decision illustrates, establishing that there were omissions from a disclosure list will not be sufficient to establish that an opponent failed to conduct a reasonable search for disclosable documents. Where however the search was not carried out in good faith, or was not fair and proportionate to the case in hand, the court is likely to find that a reasonable search did not take place.

The decision is also of interest for the judge’s view that the e-disclosure practice direction (PD 31B) will not ordinarily apply where documents are held in paper form and a party unilaterally decides to have them scanned into an e-disclosure database, and to follow an e-disclosure approach, without prior notice to the other parties. However, where the parties have effectively agreed to that approach, the court is likely to find that PD 31B applies. James Farrell and Maura McIntosh outline the decision below. Continue reading

High Court grants relief from sanctions following errors in compliance with “unless order”

The High Court has granted a defendant relief from the sanction of striking out its defence following errors in compliance with an “unless order” to give e-disclosure: Wyche v Careforce Group PLC (unreported, QBD, 25 July 2013). This decision illustrates that, despite the court’s increased focus on compliance as a result of the Jackson reforms, the court can still make allowance for human error and grant relief in an appropriate case.

Nonetheless, given the court’s broad discretion on such matters and the general trend toward a strict approach, parties would be well advised to comply carefully with rules and court orders so as to avoid falling foul of tough decisions under the new regime. Continue reading

New rules in relation to the disclosure of electronic documents in High Court proceedings

A new Practice Direction (PD) and Electronic Documents Questionnaire will apply to the disclosure of electronic documents in multi-track cases started in the High Court on or after 1 October 2010. The new PD and questionnaire have been developed out of a concern that the existing provisions relating to e-disclosure (at paragraph 2A of existing Practice Direction 31 of the Civil Procedure Rules (CPR)) are not effective in forcing parties to litigation, and their lawyers, to address e-disclosure issues properly at the outset of the case. Continue reading

Electronic disclosure – ignore rules at your peril

Earles v Barclays Bank Plc [2009] EWHC 2500 provides a clear reminder to litigants to undertake proper electronic disclosure. The judge made clear in the starkest terms that Practice Direction 31 2A (electronic disclosure) “is in the Civil Procedure Rules and those practising in the civil courts are expected to know the rules and practice them; it is gross incompetence not to“. Costs consequences can flow from a failure to comply. Continue reading