Following the precedent set by Da Silva Moore1 in 2012, courts across the United States have adopted the use of predictive coding (sometimes referred to as “technology assisted review”) as a means of reducing the time and cost of discovery. Other jurisdictions around the world are also beginning to embrace this evolving technology.
In a recent United Kingdom decision, Pyrrho Investments2, the High Court held that predictive coding could be used in UK cases going forward. That case involved an action for breach of fiduciary duty with tens of millions of pounds at stake. One of the claimants had kept back-up tapes that contained millions of potentially relevant documents. Even after deduplication was performed and search terms were run, 3.1 million documents remained to be reviewed. Both parties agreed to the use of predictive coding, pending court approval. Master Matthews held that the Civil Procedure Rules did not preclude the use of the technology. This was the first court decision in the United Kingdom approving the use of predictive coding.
In reaching his decision, Master Matthews relied heavily on the Da Silva Moore opinion by Judge Peck and the Irish Bank Resolution3 opinion from the Republic of Ireland that approved the use of predictive coding in their respective jurisdictions. The Court identified 10 factors found to weigh in favor of the use of predictive coding in the case, including effective use of the software in other jurisdictions, lack of evidence that the software led to less accurate results, the large number of documents at issue in the case, and the potential for cost reduction through limiting the number of attorney hours that would have to be spent on a more traditional review. He also stated that there “were no factors of any weight pointing in the opposite direction.” In stating that predictive coding was suitable in the case at hand, the Court concluded that its use in other cases would depend on the particular circumstances of each case.
The decision is likely to increase the willingness to use this technology across the United Kingdom. Reed Smith licenses predictive coding technology both in the United States and the UK, and has experienced reviewers in both locations, so clients in Europe and in the United States may continue to leverage Reed Smith’s predictive coding, and traditional review resources and capabilities, without having to transfer data outside of the EU or the United States.
- Da Silva Moore v. Publicis Groupe & MSL Group, 287 F.R.D. 182 (S.D.N.Y.) (2012)
- Pyrrho Investments Ltd. v. MWB Property Ltd & Ors,  EWHC (Ch) (16 February 2016)
- Irish Bank Resolution Corporation Ltd v. Quinn, H. Ct. Ir., No. 2011 5843 P, 3/3/15 (15 DDEE 175, 4/30/15)
Client Alert 2016-060