As I sit contemplating collecting together the 2016 eDisclosure-related judgments from England and Wales, I have to admire Ralph Losey who kicked off the year with a 30,000+ word essay on the Top 22 most interesting US eDiscovery cases of 2016.

Whether you read it all at once or keep it as a (well hyperlinked) work of reference, it is an immensely useful collection of judicial opinions on a subject which continues to dominate US litigation.

Top of Ralph Losey’s list is US Magistrate Judge Andrew Peck’s decision in Hyles v New York City in which he declined to order an unwilling party to use technology-assisted review – I wrote about that decision here, concluding that a UK judge faced with similar facts might well feel entitled to make such an order because of the rather different principles which apply in England and Wales.

Perhaps the most important point in Ralph Losey’s article comes not from the summary of any one case but from his conclusion at the end – that TAR is only “the best and most efficient search tool” (Judge Peck’s words from Hyles) if it is used properly. Ralph Losey concludes that he and his team:

… would much rather work on a well-run, well-designed keyword search project, than a mismanaged, poorly designed predictive coding project.

The final paragraph of the post consists of Judge Facciola’s “angels fear to tread” words from the 2008 case O’Keefe. The relevant paragraph from O’Keefe reads:

Whether search terms or ‘keywords’ will yield the information sought is a complicated question involving the interplay, at least, of the sciences of computer technology, statistics and linguistics…. Given this complexity, for lawyers and judges to dare opine that a certain search term or terms would be more likely to produce information than the terms that were used is truly to go where angels fear to tread. This topic is clearly beyond the ken of a layman.

A court might, for example, like to adopt the approach taken by the court of Victoria in Money Max Int Pty as Trustee for the Goldie Superannuation Fund which I wrote about here. The party seeking to use predictive coding was required to explain the process, the judge saying:

“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…”

My article summarises what was to be covered in the report this ordered. A report covering this ground from a provider of the calibre of FTI would meet Judge Facciola’s “angels fear to tread” warning.

There is another point here. I have carefully inserted [US] into the heading of this article to make it clear to my readers that the article on which I am reporting is about US cases only – as is entirely right for a US commentator addressing a US audience. It would be interesting to hear from a US commentator as to the potential influence (if any) of, say, UK, Irish and Australian cases on US jurisprudence.

As I reported in this article, US Magistrate Judge Elizabeth Laporte said at the recent Dublin conference that proportionality was now moving “front and centre” in US thinking about discovery; we are also seeing more US discussion about costs-shifting. Proportionality and costs-shifting have been “front and centre” of litigation in England and Wales and in Australia, Hong Kong, Singapore and Ireland for many years.

We have heard for so long that the US leads the world in eDiscovery and is, so some say “two years ahead” of anyone else. I have spent a lonely decade suggesting that the US might learn something from the rest of us (not quite alone, I should say: Judge Peck stands out, but is not the only US judge willing to draw on the experiences of other jurisdictions, and there is a handful of others – I avoid lists for fear of leaving someone out but you know who you are – who have an informed interest in what happens elsewhere). Might we hear from a US commentator about the lessons to be learnt from the courts and rule-makers of other jurisdictions?

Post-script: Phil Favro of Driven, Inc and CTRL reacted immediately to my closing paragraph with a link to his own article of February 2016 called Perspective: Lessons Learned From a UK Predictive Coding Order. Keep them coming.

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