Australia has now joined the common law jurisdictions in which courts have permitted the use of technology-assisted review and got involved in prescribing the mechanics. In one case it was the judge who was the first to raise the subject. The courts of England and Wales have a right and duty to manage cases actively, and a wide discretion to do what is right. The judgments of respected foreign courts can be persuasive.

Much of my time this year has been spent on the commonality between jurisdictions when it comes to the use of technology in civil litigation. The high point, perhaps, was my panel at kCura’s Relativity Fest where we brought together US Magistrate Judge Peck with the US perspective, Karyn Harty of McCann FitzGerald for Ireland, and Ed Spencer of Taylor Wessing and Dan Wyatt of RPC for the view from England and Wales.

Relevant cases from each of these jurisdictions called upon prior cases from other jurisdictions in considering whether it was appropriate to use technology-assisted review / predictive coding to narrow down the set for discovery / disclosure. The general sense is that this technology is increasingly acceptable in an appropriate case (and one must stress that the nature of the case matters in all these jurisdictions).

Now Australia has joined in, with two cases from Victoria together with a Practice Note of the Supreme Court of Victoria which covers the use of technology-assisted review as well as other matters related to technology.

I do not intend to give a deep analysis of either the judgments or the Practice Note. It suffices to point you to them, to a useful summary by Allens called Predictive coding gets green light from an Australian court, and to an article by Angela Bunting of Nuix called Technology Assisted Review Heating Up in Australia.

The case referred to is McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd in the Technology Engineering & Construction List in the Commercial Court of the Supreme Court of  Victoria. The Allens article begins with a brief description of predictive coding and with references to the cases in the US, Ireland and England and Wales.

Allens highlights the fact that it was the court, rather than either of the parties, who initiated the discussion about the proposed use of predictive coding. This approach is consistent, in theory at least, with the positive duty placed on courts in England and Wales to engage in “active management”.

You may be interested in this context in my article of 6 August called Judge Peck declines to order a party to use TAR. What would an English judge have done? Among other things, my article considers the relative power and duty of English judges to take the initiative in dealing with the scope, the method and the cost of disclosure along with other aspects of case management. We need to see more examples of a judge in England and Wales doing what Justice Vickery did in Victoria and raising the subject before the parties did.

The other case is Money Max Int Pty as Trustee for the Goldie Superannuation Fund in the Victoria District Registry of the Federal Court of Australia.

Beginning at paragraph 5, the court laid down prescriptive requirements for the proposed use of technology-assisted review. The judge said that “the Respondent is to provide the Applicant a report from FTI Consulting and/or the Respondent’s solicitors describing with particularity the manner in which the Respondent has applied technology assisted review purposes of giving discovery…” The information to be given and thereafter discussed included:

• (a) the nature and technical parameters of the TAR algorithm used;
• (b) the process for selecting and coding the training set of documents;
• (c) the process for selecting and coding the validation set of documents;
• (d) the process for training the algorithm to identify relevant documents for production, including the level of relevance applied;
• (e) the process for validation and testing, including disclosure of analyses relating to the accuracy, validation or quality of documents produced;
• (f) the number of documents in the complete data set identified as relevant and irrelevant following the application of TAR and, with respect to the relevant documents, the number of documents withheld on the basis of privilege;
• (g) the search terms applied in conjunction with TAR; and
• (h) the process followed with respect to potentially privileged documents.

It will be interesting to see what happens in this case. As Angela Bunting of Nuix points out in her article, the form of the order, with its emphasis on getting expert input into the decison-making, gives us a template for future judicial management – get the proposal clearly set out by an expert and submit it for approval (or challenge as the case may be) by the other side and by the court.

The Practice Note is the Supreme Court of Victoria’s Practice Note SC GEN 5 Guidelines for the Use of Technology. It is all interesting, and I do not intend to summarise it here. Discovery is dealt with from paragraph 8 which sets out a number of “assumptions in case management and cost decisions regarding discovery” which are to apply unless the contrary is established by a party. There is provision for a discovery plan and for a discovery conference where the parties cannot agree on the contents of a discovery plan.

There is a separate section dedicated to technology-assisted review beginning “In larger cases, technology-assisted review will ordinarily be an accepted method of conducting a reasonable search in accordance with the Rules of Court”.

As I noted in opening this article, jurisdictions are learning from each other in this area, not necessarily accepting what is done in other jurisdictions but at least considering its application to their own circumstances. The courts of England and Wales have the widest discretion to do what is right, and it ought to be persuasive, at the least, for parties to introduce into the debate the developments in other common law jurisdictions. As I have have said above, the judge ought to self-start on this if the parties do not – how shaming it would be for lawyers who purport to be giving their clients the best advice if the judge raised the use of technology which they had not even considered?

For pointers to the source material referred to here, I am obliged to Angela Bunting at Nuix, Benjamin Kennedy at NuLegal and Geoffrey Lambert at the Australian Taxation Office.

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