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Technology Assisted Review plays key role in litigation

14 December 2016

The Supreme Court of Victoria has become the first court in Australia to order the use of technology-assisted review (TAR) techniques, or predictive coding, to reduce the potentially huge task of discovering documents in civil litigation.

The decision in McConnell Dowell v Santam[1] by Justice Peter Vickery reflects an increasing trend by jurisdictions overseas to embrace TAR, as a highly efficient and practical means of simplifying the discovery process.

It also comes just weeks before the Supreme Court introduces its streamlined, simplified series of Practice Notes, including one that endorses the use of electronic technology to promote the efficient and swift conduct of civil litigation.

Practice Note SC Gen 5 – Technology in Civil Litigation[2] recognises that communications and dealings in the modern world are predominantly conducted electronically. Moreover, a large number of discoverable documents are stored by parties electronically.

A key principle behind this Practice Note is to encourage electronic documentation in all civil litigation. Hard copy will be the exception, not the rule, and parties will have to justify why they need to convert electronic documents into hard copy.

The Practice Note makes clear that, in large cases, technology-assisted review will ordinarily be an accepted method of conducting discovery, and the Court may order discovery by technology-assisted review, irrespective of whether the parties consent to it.

In McConnell Dowell v Santam, Justice Vickery noted the contract at the core of a commercial dispute (as well as an associated arbitration) had generated about four million documents. This was reduced to about 1.4 million by using de-duplication technology to eliminate unnecessary copy documents.

The time and expense of reviewing this material using traditional methods would have been prohibitive. Justice Vickery suggested a junior solicitor, taking one minute to review and catalogue each document manually, would have spent about 583 working weeks (or more than 10 years) filtering through the documents. It is expected that the use of TAR processes will reduce the volume of material that must be manually reviewed in this case to a more workable body of tens of thousands of documents.

Predictive coding or TAR techniques have been recognised by the High Court of the United Kingdom,[3] the High Court of Ireland,[4] and by Judge Andrew Peck in the US District Court, Southern District of New York[5] .

The Supreme Court expects parties to cooperate on the conduct of cases and to consider how technology can improve the efficiency of the discovery process and reduce costs.

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[1] McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd & Ors (No 1) [2016] VSC 734 (2 December 2016): http://www.austlii.edu.au/au/cases/vic/VSC/2016/734.html

[2] New Practice Notes affecting litigation in the Supreme Court of Victoria will come into effect from 30 January, 2017. They are now available on the Court’s website: http://www.supremecourt.vic.gov.au/home/law+and+practice/rules+and+practice+notes/

The Technology in Civil Litigation Practice Note can be found at this link: http://www.supremecourt.vic.gov.au/home/law+and+practice/rules+and+practice+notes/practicenotescgen5guidelinesfortheuseoftechnlogy

[3] Pyrrho Investments Ltd v MWB Property Ltd [2016] EWHC 256 (Ch); David Brown v BCA Trading [2016] EWHC 1464 (Ch).

[4] Irish Bank Resolution Corporation Ltd & Ors v Quinn & Ors [2015] IEHC 175.

[5] Rio Tinto Plc v Vale S.A. et al 14 Civ 3042 (RMP) (AJP) (2 March 2015) 2.

 

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