Ed Spencer is a Senior Associate at Taylor Wessing. It was his affidavit which provided much of the technical information used by Master Matthews in giving his blessing to the solution agreed between the parties in Pyrrho.
Ed Spencer and Lizzie Hancock, also of Taylor Wessing, have written an article on the firm’s website called eDiscovery innovations: Continuous Active Learning. It is not too often that we see such articles by an actual user, still less by a user based in the UK.
The article gives a brief description of what Continuous Active Learning is. More significantly, perhaps, it has a section called How to use continuous active learning – size doesn’t matter, which sets out some of the factors to consider when using Continuous Active Learning including, crucially, discussions aimed at “explaining and justifying strategy to the other side”.
I took part in a session with Ed Spencer at last month’s IICE event in London in which his focus was on that aspect – articulating your position requires a certain skill in advocacy no different from other things where lawyers need to be persuasive; it is helpful also to have enough underlying knowledge to be convincing about it.
You might also like an interview which I did with Ed Spencer some time ago in which he covered both the development of his own understanding of the technology and the discussions, both internal and external, which had to happen before its use was approved.
Part of the new article is about the function of prioritisation, that is, pushing to the front of the review queue the documents most likely to be relevant. Why would one not appreciate this? Who would say “No thanks, I’d rather start at the earliest document and work my way through to the latest”?
As the article puts it:
Prioritising can be used on document review pools of any size and there is no reason not to prioritise, unless you like surprises.
There is also a passage about the application of CAL to the disclosure requirements in the Civil Procedure Rules of England and Wales:
[CAL] is most often used when the document set is so large that a manual review would be disproportionate or impossible in the given timescales. Understandably, naturally risk-averse lawyers may shy away from the thought of not reviewing all potentially relevant documents. But if used appropriately, this approach can be defensible and proportionate to satisfy the obligation of conducting a reasonable search for documents as required by the Civil Procedure Rules. It is not necessary to identify 100% of all relevant documents within the party’s control. Some stones can be left unturned.
That last sentence, about unturned stones, is derived from a case called Nichia v Argos. Lord Justice Jacob, in a well-known passage, said:
“Perfect justice” in one sense involves a tribunal examining every conceivable aspect of a dispute. All relevant witness and all relevant documents need to be considered. And each party must be given a full opportunity of considering everything and challenging anything it wishes. No stone, however small, should remain unturned. Even the adversarial system at its most expensive in this country has not gone that far.
The principles set out in Nichia will remain valuable even as we move to yet another new disclosure rule. It is a good place to look if you find yourself in an argument with someone who considers that his or her duty lies in reading everything as a preliminary to deciding what to disclose. Continuous Active Learning, properly used, gets you off that.
PS 1: I have to say this, I suppose, because people do like to misunderstand that last point. I am not urging the handing over of documents which you have not read; the point is how much you can safely exclude from review without reading it.
PS 2: Yes, I know the strict designation for my heading could be “the courts of England and Wales” since the context is defined by three judgments of those courts. The same principles, however, apply to regulatory and other investigations, and to the growing number of other applications for this type of technology. “UK” fits in headings and tweets and embraces other non-American jurisdictions.