In this video interview, I talk with Edward Spencer, the associate at Taylor Wessing who had the conduct of the eDiscovery application in Pyrrho Investments v MWB Property which resulted in the UK’s first court approval for the ue of predictive coding. It was Ed Spencer who produced the witness statement explaining the proposed use of predictive coding which was referred to in complimentary terms by the judge.

The Pyrrho judgment gave judicial approval to something which had been agreed between the parties. As Ed Spencer makes clear in this interview, the path to that agreement was not straightforward with, as he puts it, the usual “angry letters” being exchanged before the lawyers and their technical experts “got in a room” to discuss their respective positions. Most disputes are capable of resolution, Ed Spencer says, once you get into a dialogue which narrows the issues and, if necessary, sets out residual points of dispute for the court.

The rules actually require such a discussion (Part 31.5(5) says that parties “must, at a meeting or by telephone, discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective”). Ed Spencer observes that these attempts to reduce costs are a duty owed to the client as well as a matter of professional obligation.

One reason for trying to understand the other side’s position and to reach agreement is that the decisions will otherwise be made by a third party, the judge, who may come up with an answer which pleases no one.

Ed Spencer is also strong on the need for disputes lawyers to understand what technology is available. Not all cases require predictive coding, he says, but some analytic modules (he mentions prioritisation specifically) are going to be helpful in almost any large case. You need some knowledge of the options in order to take part in the discussions which may be initiated by the other side or by the court.

If it is bad enough to be caught on the hop when an opponent raises the subject, it is worse when it is raised by the judge at a hearing and the barrister turns to the solicitor and mouths “What do I say?”. As Ed Spencer puts it at the end of this interview, he is not sure you could distil your reasons for not using predictive coding “into a Post-It note to pass to the front”.

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