In a judgement handed down last week(1), an English High Court Master approved the use of the technique in a proceedings in which permission to use the technology had been sought by the parties.
In his decision, Master Matthews argued not only that 'there was no evidence to show that the use of predictive coding software leads to less accurate disclosure' but that it even implies 'greater consistency' than a traditional, manual review.
With the trial date more than a year away, 'there would be plenty of time to consider other disclosure methods if for any reason the predictive software route turned out to be unsatisfactory.'
The parties had agreed on the use of the software and how to use it, he noted.
Although the judgement shows clear evidence of predictive coding's growing acceptance, a strong emphasis was given to the cost saving potential of the technique. In this case, the Master asserted that the cost of manually searching the three million plus documents involved would be 'enormous' and 'unreasonable.'
'Whether it would be right for approval to be given in other cases will, of course, depend upon the particular circumstance obtaining in them,' he noted.
In a press release following the judgement, Taylor Wessing, one of the law firm's which had sought the court's approval to use predictive coding said: 'It is to be hoped therefore, that we have seen the birth of a new standard order that will be used in all cases where directions for the use of predictive coding are appropriate.'
English court decisions regarding the use of technology have not always been so favourable. Last year, the Companies Court in Smailes and another v McNally and another(2), highlighted the danger of over-reliance on technology in disclosure, particularly for scanned documents. In that case, the judge took a dim view of garbled optical character recognition (OCR) results, deciding that they did not allow for the required ‘reasonable search for [relevant] documents...’
As an independent document review services provider, LexSensis can advise you on whether predictive coding is a suitable choice for your document review. For your staffing needs, our network of over 5000 experienced document review lawyers are available throughout Europe. For more information, or to discuss your needs, contact us via email firstname.lastname@example.org or phone +32 (0) 2 401 61 68.
(1) Pyrrho Investments Ltd v MWB Property Ltd & Ors  EWHC 256 (Ch)
(2) Smailes and another v McNally and another  EWHC 1755 (Ch)
About the authors
Jennifer Sharman Koh is a solicitor of England & Wales who has practiced international arbitration in London, Paris and Brussels, advising multinationals and governments on major international disputes. She has extensive document review experience both in the development of managed review protocols and in the practical setting-up of reviews across Europe. At LexSensis, she built-up a large network of lawyers to work on document reviews across Europe, whatever the country, whatever the language. Jennifer is responsible for operational and strategic aspects of LexSensis and is the key client contact in the Benelux.
Io-Anna Lianos is a dual-qualified solicitor admitted in England and Wales and at the Athens Bar Association, Greece. She is an expert consultant in complex eDiscovery and Managed Review processes with years of experience managing large-scale document review projects across Europe and Asia. In 2009, Io-Anna founded DLR Legal, one of the pioneers of document review consulting in London, specializing in multilingual reviews across Europe. She built up a large Europe-wide network of document review specialists, covering 28 jurisdictions and a multitude of languages. Over the course of her career to date, Io-Anna has advised clients on all aspects of managed review processes, including on best practices for solving complex managed review and legal staffing needs. She is the Director of LexSensis, responsible for all operational and strategic aspects.