May the Luck of the Irish be With You (and Your TAR).March 17th, 2015
Just in time for a St. Patrick’s Day blog post, earlier this month the High Court in Dublin issued an order approving the use of technology assisted review (TAR). In Irish Bank Resolution Corporation Ltd. v. Sean Quinn, Justice Fullam found that “technology assisted review using predictive coding discharges a party’s discovery obligations” under the applicable Supreme Court rule, Rule O.31 r.12.
I have not been able to find a copy of the actual order on the interwebs, but Chris Dale in his eDisclosure Information Project blog does an excellent job of piecing together news stories about the decision and crafting an analysis of the holding. I particularly enjoyed Chris’s characterization of the attitude held by many lawyers on this side of the pond about using predictive coding and other advanced analytics in discovery:
We know that some American lawyers won’t scratch their bottoms unless some judge, in some case, in some court, in some state, has given his or her blessing not only to the act but to the method. . .
Chris and I agree that lawyers don’t need that explicit court blessing to conduct discovery with effective technology assistance, so long as the methodology used is reasonable and defensible. And in the IRBC case, Justice Fullam found just that – the protocol proposed by the producing party (in this case, plaintiff IRBC) contained sufficient safeguards to justify use of the technology.
Relying on principles of proportionality, the Irish court noted that using TAR was especially appropriate in light of the time and cost necessary to conduct a traditional manual review – estimated to be nine months and €2 million. The court also emphasized the transparency built into the proposed protocol, and the efforts made by the IRBC’s lawyers to work with defendants to reach an agreement about the use of TAR. Kudos to my friend Conor Crowley, hired by IRBC as its expert, whose skills and advocacy no doubt contributed to the outcome – a win for IRBC, and for advocates of discovery technology around the globe. Sláinte!