If you thought that it is only English judges who are telling our futures with their comments on the future of litigation and processes then you need to be aware that the pace of change in other jurisdictions continues apace.
In a recent article in Law Technology News, Mark Michels, Silicon Valley consultant and formerly litigation manager and discovery counsel at Cisco Systems, informs us that a number of judges have recently contributed to the debate about predictive coding, sometimes referred to as ‘technology assisted document review’. [Predictive Coding: Reading the Judicial Tea Leaves, Law Technology News, 17th October 2011]
US District Court Magistrate Judge Andrew Peck, Magistrate Judge John Facciola of the US District Court for the District of Columbia and Magistrate Judge Paul Grimm of the District of Maryland are three of the strongest proponents of e-discovery solutions currently sitting in the US courts.
The article is worth a read but for those of you who are taking advantage of the recently reported upsurge in litigation and litigation spend the bare bones are as follows:
- Judge Grimm has been a supporter of these analytical tools for some time and spoke approvingly of them in Victor Stanley, Inc v Creative Pipe Inc about which I have previously written [Spoiling the Party 14th July, 2011] as a result of the excellent article on the subject by Carol Owen of Waller Lansden in Nashville Tennessee.
- A more recent judicial endorsement of the tools comes in Judge Peck’s article [Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding? Litigation Support Technology & News, 30th September, 2011]. Engagingly, Judge Peck asserts that until there is a judicial opinion to the contrary (or in favour) lawyers will have to rely on his article as “ a sign of judicial approval.”
- Judge John Facciola in Disability Rights Council of Greater Washington v Washington Metro. Transit Authority quotes with approval recent scholarship “that argues that concept searching, as opposed to keyword searching, is more efficient and more likely to produce the most comprehensive results.”
Lawyers need to know that using such techniques is defensible and the three judges are at pains to stress that as far as they are concerned they are happy to accept that the processes involved are appropriate provided always that the parties can demonstrate that the results are “responsive and reliable” which may well need expert evidence to be called.
My colleague, Millnet Managing Director James Moeskops, just back from the recent Nuix Exchange in Sydney, reports that one of the highlights was the judges’ panel. It is encouraging to see a growing global consensus about how these issues need to be handled, a consensus which has the judges behind it and which is aimed at the central issues of the efficiency and cost effectiveness of the litigation process.
At Millnet, we have been involved in a number of client cases of technology assisted document review over the course of the past few months. As a result, we now have experience of a number of actual live cases and this experience is proving to be invaluable not least because much that has been written about the subject is speculation and supposition whereas we now have the hard facts!
This is just as well as truly, the judges are coming and litigators and litigants need to take note!