I try and keep a rough balance in these pages between subjects and between providers of eDiscovery / eDisclosure software and services. By “rough”, I mean that I sometimes let a subject sit for a few days so as to give you a balanced diet. I cannot help it, however, if one supplier publishes a predictive coding paper of mine at the same time as another releases a video which I made with them – both were done some time ago and I do not control publication dates. Every subject which I cover – information governance, cross-border discovery, EU data protection, social media, UK procedural rules, Hong Kong and Singapore, and discovery market acquisitions are all claiming equal attention at the moment and it seems better to grab subjects as they fly by rather than to agonise over priorities.
What attitude will the UK courts take to the use of advanced software like predictive coding? The question comes up because the US eDiscovery world is in a fever over judicial acceptability of predictive coding, seemingly unwilling to use any software which has not been pronounced “defensible” by some judge. This mystifies the rest of us somewhat, not least because most UK case-managing judges couldn’t accurately distinguish between predictive coding and Pac-Man, but would speedily get their minds round it if it and its application to the case in front of them was explained clearly and in terms of proportionality. The fact that some other judge made a decision in an entirely different case is irrelevant in a jurisdiction which prizes judicial discretion above everything.
Well, the US now have their judicial endorsement in the form of US Magistrate Judge Andrew Peck’s Opinion in Da Silva Moore v Publicis Groupe and MSL Group. Judge Peck was at pains to emphasise both that the actual software used was not relevant to his decision (it was in fact Recommind’s Axcelerate) and that the processes agreed between the lawyers were more important than the choice of application. That is not to say that all predictive coding applications are of equal quality – far from it – but no one will argue with Recommind’s claim to be amongst the market leaders.
In the video, I ask Senior Master Whitaker – one judge who can definitely distinguish between predictive coding and other things – for his view on the likely attitude of UK courts to predictive coding and other sophisticated technologies. As always, Master Whitaker manages to be both uncompromising and balanced in his answers.
The video is short and I will leave you to watch it without further explanation. I’m not quite sure why I have come out looking as if I am reclining in a dentist’s chair – it felt upright at the time. In any event, it is the words which matter, and Master Whitaker’s more than mine.
To accompany the video, I have written an article for Computers and Law called Predictive Coding = Proportionality. The focus in that, and in the interview, is on proportionality and on the duty of lawyers to argue on an informed basis for whatever approach they think is right. I also take the opportunity to challenge the most commonly-heard misconceptions about the use of technology of this kind.