If you read my article TAR-red with the same brush in the US and Ireland, you will have concluded that I had a copy of the judgment in Irish Bank Resolution Corporation Ltd v Sean Quinn and ors about the use of predictive coding / technology-assisted review, and you may have wondered why I did not link to it.
Even if you have already read my summary, you may find the detail in the judgment worth reading. In Ireland, as in England and Wales, Judges make decisions about matters of this kind using their discretion after hearing argument from both parties. The decision is peculiar to its facts and to the balance of expense against the risk in that case that documents will be missed. As I suggested in my earlier article, (and as was argued by the defendants in this case) the Irish rules may be taken to mean that the party certifying the completeness of discovery is 100% sure that all relevant documents have been found. The judge easily dismissed that proposition, but anyone else going over the same ground will have to undertake the same painstaking exercise as did Karyn Harty of McCann FitzGerald in this case, explaining carefully what the costs implications are of one route versus another and showing why the risk of omission was a small one.
The judge laid particular emphasis on the terms of the protocol agreed between the parties. It takes some skill and knowledge to be able to assemble the arguments in a way which will satisfy the court and, given the potential savings, if I were a corporate client I would take my business to lawyers like McCann FitzGerald, who are capable of marshalling and articulating these arguments (I don’t imply that their opponents did not, but relatively few firms seem to want to acquire the skills).
It takes two to cooperate on agreements like this. In this context you might like to read an article which I wrote in September 2013 with the title Who’s next? Outgun and outrun bigger firms by hiring eDiscovery skills, whose opening concerned two law firms who “entered into an eDiscovery agreement with opponents on terms, and using terms, which neither of them understood”. I used that in the article as the springboard for the suggestion that lawyers might see some advantages (a competitive advantage vis a vis rivals, the advantage of winning cases, the advantage of not being sued for negligence or struck off for incompetence) in understanding what technology can do to help achieve client objectives and aid compliance with rules while keeping costs down.
It is perhaps not coincidental that Karyn Harty’s firm McCann Fitzgerald turns up twice in this post. John Flood is McCann FitzGerald Professor of International Law and Business (note the conjunction of those concepts) at UCD Sutherland School of Law in Dublin. I owe to him a tweet pointing to an article published this week (and here’s another one from last November) about the Quinn case which appeared this week in Irish newspapers, both of which refer to the enormous savings expected as a result of the TAR judgment. The public interest in this case is helping to ensure that the wider legal and business communities become aware of the existence of technology which can achieve such savings whilst being compliant with the relatively strict Irish discovery rules.
John Flood is interested in the business of being a lawyer, and a subsequent exchange of tweets between us covered the implications for law firms when technology appears to threaten the livelihoods of lawyers. This is a subject which I have been over before, not least in another of my articles, called King Ludd and the Lawyers – e-Discovery and the Luddite Fallacy; that concerned an NYT article of 2011 called Armies of expensive lawyers, replaced by cheaper software which brought an awareness of eDiscovery technology to the business press.
I won’t stop on it now, but this is a subject to come back to.