In two recent decisions, the English High Court has approved the use of predictive coding in the discovery process.
The English Cases: Pyrrho & BCA Trading
In Pyrrho Investments Ltd v MWB Property Ltd., released in February 2016, both parties agreed to its use. On May 17, 2016, in an unreported decision[1], the High Court granted BCA Trading, a defendant, an order permitting them to use predictive coding despite the plaintiff’s objection. Counsel for BCA Trading argued that a manual review would be disproportionate in cost, and that predictive coding would be more accurate.
These decisions follows similar decisions in the US in 2012 (Da Silva Moore v Publicis Groupe) and Ireland in 2015 (Irish Bank Resolution Corporation Ltd & ors v Quinn & ors). Predictive coding is rapidly gaining acceptance as a proportionate approach that fulfills discovery obligations. Judicial endorsements of predictive coding have recognized that this technology-aided approach is an innovative, reliable, and proportionate solution in large document matters.
The increasing judicial approval of predictive coding should give parties more comfort in using this technology. In Pyrrho, Master Mathews provided a list of 10 factors supporting the use of predictive coding, ranging from cost efficiencies to evidence that predictive coding is at least as accurate as manual review or keyword searches.
Predictive Coding in Canada
Canadian courts have yet to hand down any direct rulings on predictive coding. However in his 2011 decision in L’Abbé v Allen-Vanguard, Master MacLeod stressed that courts need to reassess “caselaw developed for manageable numbers of paper based documents“. Master MacLeod explicitly mentioned predictive coding as a potential solution, writing that:
Various e-discovery solutions are available including software solutions such as predictive coding and auditing procedures such as sampling. […] Suffice to say traditional approaches to production motions cannot be used for production on this scale.
Given the growing acceptance of predictive coding and the maturing of the technology, it seems difficult to imagine a court rejecting a party’s proposal to use predictive coding, even in a contested case.
[1] This decision was not published, however, details about the ruling can be found on respondent counsel’s website: http://blplaw.com/expert-legal-insights/articles/blp-wins-contested-application-predictive-coding
