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“Predictive Coding Must Be the Way Forward” – So Says the UK High Court of Justice

Back in March we reported on Pyrrho Investments Ltd. v. MWB Property Ltd., the first order by a British court approving the use of the use of technology assisted review (TAR) for litigation disclosures. In that case, Master Matthews drew heavily from Magistrate Judge Peck’s landmark decision in Da Silva Moore v. Publicis Groupe, and crafted a list of ten factors weighing in favor of the use of TAR. The court found no factors suggesting TAR should not be used.

Now, another UK court has approved the use of TAR, but this time in a different posture. In Brown v. BCA Trading, Ltd., unlike in Pyrrho, the parties could not agree on the use of predictive coding. Respondent BCA Trading, who possessed the majority of the documents that would be relevant for trial, proposed using predictive coding to identify documents for disclosure. According to BCA Trading, predictive coding would be “the most reasonable and proportionate method of disclosure.” The Petitioner, however, insisted that the Respondent should use traditional methods of keyword searching and manual review.

BCA Trading Order Predictive Coding in UK High Court

In resolving the dispute, Mr. Registrar Jones turned to the ten-factor list from Pyrrho, finding that nine of the ten factors applied in the case before him. Only the tenth—agreement between the parties to use predictive coding—did not apply. The court pointed to cost savings as a significant factor. Based on evidence submitted by BCA Trading, the cost of document disclosure using predictive coding would be £132,000, while the cost using keyword search followed by manual review would be between £250,000 and £338,000—more than double.

In response to potential concerns that predictive coding is “new,” and “may not be as effective as traditional but more expensive methods,” the court countered that “there is nothing, as yet, to suggest that predictive coding will not be able to identify the documents” that would otherwise be found using more traditional methods. The court also noted that, as part of its order, the parties will be required to “sit down before the predictive coding begins in order to discuss the criteria to adopt and the general process of disclosure”—which is the “right approach.”

In the end, as the court observed, “the parties must do their best to achieve reasonable and proportionate results,” which “is in their own interests and meets the overriding objective.” Accordingly, “predictive coding must be the way forward.”

Maureen O'Neill