A ha’porth of tar

By | 21st August 2012

How to get Court Approval for Predictive Coding is the title of an article in Law Technology News [14th August, 2012] by Peter Buckley and Scott Vernick of Fox Rothschild in Philadelphia. Commendably short and to the point, the article provides a neat summary of the current legal state of play in relation to predictive coding and offers several practical tips for lawyers who engage in this technology.

It is worth distilling a few general points from the article, which should be read in full—it will take but a few minutes—and reading the rest of this post will take rather less!

  • E-disclosure needs to be considered in almost every case to assess whether or not its use is appropriate.
  • When you are before the court you need to be able to show how you achieved the results you have and /or why you chose a particular course of action over another. “Keep it simple, show your workings” must be the mantra.
  • Predictive coding is not magic. Nor is it a way of cutting the lawyers out of the equation. Far from it on each count! It needs to be stressed time and again that predictive coding is a lawyer led process by which lawyers train the software to identify relevant documents.
  • If selected for use, predictive coding should be part of the overall strategy for the case. For example it can help to control the cost of e-disclosure and can make budgeting more certain.
  • The new rules or Big Bang in April 2013 make this all the more important with their emphasis on costs management and case management by judges. While there are, as yet, no decisions of the English courts on the use of predictive coding, the three cases cited in the article, about which I have written before (Da Silva, Global Aerospace and Kleen Products) lay the foundation for a code of practice in the use of predictive coding. They may be US cases but I do not mind betting that the courts here will follow the thinking behind the principles which are starting to emerge from these US decisions.

TAR/CAR (Technology/Computer Assisted Review) is now an indispensable part of disclosure. Ignore the assistance it may offer at your peril. As lawyers of yesteryear might have said, “Why spoil the case for a ha’porth of Tar?”

Illustration: Le Radeau de la Méduse (The Raft of the Medusa) 1818–1819 Théodore Géricault (1791–1824).