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Technology Assisted Review (TAR) Across the Atlantic: UK Court Approves the Use of TAR for Electronic Disclosures

A British court has now joined courts in the United States—and one in Ireland—by approving the use of technology assisted review (TAR) in litigation. On February 16, 2016, in the matter Pyrrho Investments Ltd. v. MWB Property Ltd., Master Matthews of the High Court of Justice Chancery Division granted the parties’ request to use predictive coding technology to identify documents for electronic disclosures (the U.K. analog to U.S. e-discovery). According to Master Matthews, it was the first such decision in the U.K.

Technology Assisted Review in litigation approved in UKIn reaching his decision, Master Matthews draws heavily from the landmark decision in Da Silva Moore v. Publicis Groupe—and in particular, Magistrate Judge Peck’s opinion. Adopting similar analysis and rationale, the court ultimately points to ten factors weighing in favor of the use of TAR—and no factors weighing against it. The Master’s ten factors provide a useful framework to summarize the decision:

  1. Experience in other jurisdictions (namely, the U.S.) demonstrates that predictive coding can be useful in appropriate cases.
  2. There is no evidence that predictive coding tools are less accurate than other techniques—namely, manual review and/or keyword searches—at finding relevant information. Indeed, there is some evidence that TAR is more accurate than these traditional methods.
  3. By relying on fewer human decisions than teams of manual document reviewers, predictive coding delivers more consistent results.
  4. The applicable U.K. rules of procedure and other guidance do not prohibit the use of predictive coding.
  5. Predictive coding is particularly suitable in this case, where more than 3 million documents must be searched for potentially relevant content.
  6. The cost of manual review would be “enormous,” and therefore “unreasonable” under the standards set forth in the civil rules of procedure.
  7. The cost of using predictive coding was likely to be far less expensive than manual review.
  8. The cost of predictive coding would be proportionate to the amount at stake in the case, with claims for damages of more than £10 million.
  9. Because trial in the case is not scheduled until June of 2017, if for some reason predictive coding tools turn out not to be successful, there is time to use alternate methods.
  10. The parties agreed on the use of predictive coding—both the tool itself and the protocol for implementing it.

The Pyrrho decision is significant for its outcome—approval of predictive coding by a U.K. court. In effect, acceptance of TAR has been imported by the U.K. from the U.S., where it’s much more well-established. But the ruling is significant for another reason—its emphasis on proportionality. Proportionality in litigation disclosures (what we call “discovery”) is well-accepted in U.K. jurisprudence, but in the U.S. the concept has been slow to take hold. Some would argue that it’s high time we embraced that particular U.K. import. Indeed, recent amendments to our Federal Rules of Civil Procedure have done just that. So, not only can predictive coding and other analytics tools help us make discovery more effective and efficient, but these tools can help bring proportionality to the cost of discovery.

Maureen O'Neill