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Nathan Wigginton
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The New Year Brings Renewed Focus on the Use of Technology in eDisclosure

Time for change

In 2015 the Chief Justice invited General Counsel from the top 100 companies to provide feedback on the current disclosure rules.  The response to this proved to be a defining moment as the overwhelming view was that the current rules where so over-burdensome that a number of organisations made it clear they were considering taking their jurisdiction of law elsewhere.

In response to this, in June 2016, a Disclosure working group was set up to take a look at the Practice Direction with the aim of modernising the current rules in CPR Part 31.  Two and a half years later after much discussion and consultation, progress has been made and the 1st January 2019 saw the kick-off of a 2-year pilot programme under the new proposed rules for the Business & Property Courts London and 7 other major cities around the UK.

The intention is that the new rules will replace CPR Part 31, this includes replacing the current eDisclosure Questionnaire (EDQ) with a more all-encompassing Disclosure Review Document (DRD). These charges will structure and guide discussions around the scope of disclosure, encourage the discussions around the use of technology, allow the courts to give directions on the use of technology assisted review tools and ensure parties keep a record of their methodology.

As you would expect, the key drivers for change were to make the system fairer, reduce costs and ultimately provide better access to justice. As with changes to conventions in any industry, technology plays a major factor in this change, but how far does it go?

Reference to Technology Assisted Review

In the new rules there are a number of references to “Technology Assisted Review”.  This is defined as “includes all forms of document review that may be undertaken or assisted by the use of technology, including but not limited to predictive coding and computer assisted review”.  This in itself is a pretty broad definition, one might question what the definition is then of “predictive coding” and “computer assisted review”?

Many software vendors have their own spin on this but the most accepted point of reference is in the EDRM glossary which describes TAR as a computerised system to prioritise coding and extrapolate relevancy decisions.

An interesting fact is that in the years it has taken for these new rules to be considered and drafted, the advancement of the software tools has continued to evolve and change rapidly.  The conversation surrounding TAR has moved on from justifications of its use. Now it’s not a matter of if TAR should be used or not, it’s more about the appropriate use of TAR.

An important additional to the new rules is that the courts have not only endorsed the use of TAR but are also pushing it as a preferred option on document heavy matters, particularly if there are more than 50,000 documents which is a threshold cited a couple of times in the new rules. Where before there may have been some apprehension whether to use TAR because the methodology is too difficult to explain, now there are set parameters to help guide parties as to if it is appropriate or not. Sky Discovery recently ran a webinar and asked if 50,000 documents is the right number to make this assertion. The results showed it seems to be a little on the low side, I would have agreed with that a year ago but with the advancements in the effectiveness of the technology and the wider use of Active Learning, it has proven to be effective at a much lower number of documents.

By addressing the use of TAR technology in the rules, it proves there is a higher level of acceptance in its use and supports the fact that it is more consistent and reliable than alternative, more time-consuming methods.

Sky Discovery has experts in the use of TAR technology including Active Leaning, for more information please contact sales@skydiscovery.co.uk.  Click here to listen to our latest webinar which covers the use of technology in the new pilot rules.

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