After a string of cases in which US courts conditionally condoned or even encouraged the use of predictive coding in recent years[1] and the recent Irish court ruling in Irish Bank Resolution Corporation Limited & Ors v Sean Quinn & Ors[2], two developments this summer may dampen the enthusiasm for this potentially cost-saving technology.

The US Federal Trade Commission’s updated Guidelines for Merger Investigations, issued this August, declined to agree that any particular list of search terms or predictive coding method would be sufficient to satisfy the specifications of a particular Second Request. Although it said that merging parties could continue to use search terms and predictive coding, they would do so at their own risk as they would continue to bear full responsibility for producing the necessary documents and information needed to comply with a Second Request.

In England, the June Companies Court decision in Smailes and another v McNally and another[3], highlighted the danger of overreliance on technology in disclosure, particularly for scanned documents. In the case, the judge took a dim view of the all-too-frequent nightmare of garbled optical character recognition (OCR) results, deciding that they did not allow for the required ‘reasonable search for [relevant] documents...’

Although the use of technology to assist in document review will likely continue to increase as the reliability of platforms improves, it is clear that teams of experienced document review lawyers will remain indispensable to preserving the credibility and legal acceptability of the process. LexSensis’ management team can advise you on whether predictive coding is a suitable choice for your document review. 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 or phone +32 (0) 2 401 61 68.

[1] Da Silva Moore v. Publicis Group, 287 F.R.D. 182 (S.D.N.Y. Feb. 24, 2012); and National Day Laborer Organizing Network v. US Immigration & Customs Enforcement Agency (877 F. Supp. 2d 87, 109, 111-12 (S.D.N.Y. 2012 [2] Irish Bank Resolution Corporation Limited & Ors v Sean Quinn & Ors [2015] IEHC 175 [3] Smailes and another v McNally and another [2015] EWHC 1755 (Ch)