Charles Christian’s Legal IT Insider has been hosting a discussion about the likely reaction of case managing judges to the proposed use of technology like predictive coding. The starting point is a thoughtful article by Drew Lewis, eDiscovery Counsel of Recommind called Best case scenario – the impact of the Jackson reforms, and Andrew Haslam, Jonathan Maas of Ernst & Young and I have joined in with comments.
However close becomes the alignment of the procedural rules in the US and in England and Wales, I suspect that we in the UK will never really get our heads round the US idea that one needs judicial blessing (from some court, somewhere) before doing anything new or different. We are not talking here of formal precedent, but of day-to-day case management of the kind which is rarely reported in England and Wales anyway.
The problem with phrases like “courts in the UK are currently not open to predictive coding”, apart from being wrong, is that they have the potential to stifle imaginative approaches to bringing costs within the bounds of proportionality. The courts are “open” to any suggestion which achieves this and one must jump on any assertion which might become a self-fulfilling prophecy.
The new rules are to some extent a clean sheet, and give opportunity for the right kind of lawyer and the right kind of judge to set the tone. The 1999 case management rules provided that the court could “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”. If the court can make any order, you can seek any order; if your suggestions point to the most proportionate approach of managing the case, then the court will not be inhibited by the absence of a case report approving of the method.
It is worth drawing attention to the point made by Jonathan Maas – your enthusiasm for agreeing timescales, as well as budgets, is no substitute for knowing what you are talking about. Vince Neicho of Allen & Overy emphasised at Epiq’s recent costs seminar that it is necessary for all interested parties (in the wider sense of the word “interested”, and including the client) to be involved in the discussions which go through into court-approved timetables.
On the same subject, The Lawyer has published an article by Jim Kent of Nuix called Is predictive coding the answer to reducing the costs of eDisclosure? which takes you through the practical steps in using this kind of technology in a manner relevant to UK proceedings.