Following the Honourable Justice Vickery’s endorsement of predictive coding technologies (also known as technologically assisted review, or TAR) in proceedings involving large discovery exercises late last year, the Supreme Court has released a new Practice Note. The note is primarily concerned with general principles for technology use in civil cases. Significantly, it permits TAR. The practice note took effect from 30 January 2017.
The most exciting strain of TAR, with perhaps the greatest potential to revolutionise big litigation, is “continuous active learning” technology (CAL). As researchers Maura Grossman and Gordon Cormack explain, CAL is a form of artificial intelligence (or AI) that refines its understanding of which documents will be most relevant, based on experienced lawyers’ responses to samples of documents already assessed.
Under the practice note, all parties engaging in discovery exercises are expected to consider how technology might help achieve practical and cost efficiencies. If the matter is likely to involve “significant” review (over 500 documents), parties must agree upon a discovery plan that incorporates technology and is “practical and cost effective”.
The note approves TAR as an “ordinarily accepted” discovery method in larger cases. While TAR is not mandated, if the Court deems the costs of manually searching electronic documents to be unreasonable and disproportionate, it may order the use of TAR regardless of the parties’ consent. For firms used to relying on an army of paralegals and junior lawyers, there’s a risk that a court order could divert the firm’s fees into the pockets of third-party technology companies.
For clients and solicitors, there are two key lessons about TAR (helpfully identified by the High Court of England and Wales):
- TAR is no less accurate than traditional discovery methods; and
- TAR can achieve greater consistency in document review, as one senior lawyer teaching a machine which documents are relevant is better than relying on the varying abilities (and presumably levels of diligence) of a multitude of more junior practitioners.
So, there doesn’t seem to be any downside to using TAR. If the project’s big enough, TAR might save clients a lot of money.
But if that’s right, TAR must threaten the existing business and billing practices of many large firms. When clients want or are ordered to use TAR, a firm’s profitability suffers. For firms with big litigation practices, TAR presents a challenge: if technology looks set to strip away easy revenue, how do you protect the firm’s profitability? We don’t know the answer, but it’s going to be important to tell your clients that they have a choice and that the TAR alternative is as effective as traditional discovery.
Like lots of technology, TAR may create efficiencies in one capacity, while generating extra work in another. While the improved cost, speed and capacity of CAL will likely overtake traditional review methods in large matters, it is worth asking whether the practice of mass review should be perpetuated, and whether TAR will simply encourage the review of increasingly tangential material? Often, only a handful of documents are truly critical to a dispute. If the goal is to streamline the review process, perhaps a simpler way would be to limit the scope of discoverable material at the outset.
Regardless, this practice note represents a — perhaps irreversible — commitment to embracing technology that benefits clients. The following principle from the new practice note embodies this commitment:
“The inability or reluctance of a lawyer to use common technologies should not occasion additional costs for other parties.”
As technology develops, the understanding of what is “common” does too. Smart lawyers must pay attention to technological advancement, and innovate to benefit from it, before it overtakes them.
Written for Legal Economy Pty Ltd by Nicola Hard. You can contact Nicola at email@example.com.