ILTA at the beginning of September gave me a good opportunity to interview US Magistrate Judge Andrew Peck about the growing use of technology-assisted review in litigation.
Judge Peck had recently given his opinion in the Hyles case to the effect that a party could not be forced to use technology-assisted review against its will; a debate was raging at a deeply technical level in the US about the merits of TAR and the proper way to use it; and I was getting ready for a panel at Relativity Fest at which Judge Peck, along with disputes lawyers from Ireland and England, were due to discuss the different approaches in their respective jurisdictions.
In this interview (below) Judge Peck says that it is clear that there will have to be more use of technology-assisted review in the English-speaking countries because it is well established that it is a much more efficient and cost-effective way of dealing with large volumes than the alleged gold standard of manual review.
As to the Hyles case, Judge Peck referred to Sedona Principle 6 and the idea that the responding party should know its documents best and is therefore in the best position to decide how to deal with search. The position may be a little different if the requesting party is highly skilled in this area and the responding lawyer is not, but that does not overturn the principle that it is not for the judge to force a party to use a system with which it is not comfortable.
If the requesting party can then show that the discovery is defective in some way then the court might get involved.
Turning to parallels between jurisdictions, Judge Peck scorned the idea that any one jurisdiction was ahead of any other. They are all trying to solve the same problems, he said, and judges in one jurisdiction can get support from the opinions and judgments of respected judges in other jurisdictions.
Judge Peck ended with a recommendation for the Sedona Conference TAR Case Law Primer which has recently been published for public comment and which includes case summaries, from US courts and from other jurisdictions.