7 Tar and Civil Litigation
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Added on 2020-02-24
7 Tar and Civil Litigation
Added on 2020-02-24
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1TAR AND CIVIL LITIGATIONIntroductionAn interplay of humans and computers, Technology Assisted Review(hereafter, TAR) in the management of commercial litigation, is viewed as anempowering, modern, cost-effective and efficient alternative to the exhaustive manualand time-consuming manual review of legal documents1. This paper is contextualised with an understanding of what TAR is in order tocritically examine the benefits and effectiveness and weighs them against thelimitations that the technology presents. The decision judgment handed down by Vickery J in the case of McConnellDowell Constructors (Aust) Pty Ltd v. Santam Ltd & Ors (No 1) [2016] VSC 734(McConnell) is considered amongst a number of cases and incidents that TAR wasutilised. It will be critically discussed and argued that the benefits that flow from theuse of TAR in civil litigation do outweigh the problems that will be identified in thisregard and superior results are accomplished through the use of the technology. TAR in the management of commercial litigationTAR extensively relies on computers for purposes of carrying out an electronic review of documents. It relies extensively on predictive coding. This is a type of coding technique that automatically makes predictions based on the needs of a researcher.2 TAR has been recognised as a process of document discovery, whereby itis possible for a human to look to interact with a computer program with the intention of then locating documents that are relevant to a particular case.3TAR takes the input from humans regarding documents that are labelledrelevant or non-relevant and draws deductions vis-a-vis other similar documents. The1Herbert L. Roitblat et al., ‘Document Categorization in Legal Electronic Discovery: Computer Classification vs. Manual Review’ (2010) 61 J. AM. SOC’Y. FOR INFO. SCI. AND TECH.2 http://www.skydiscovery.com.au/wp-content/uploads/2017/03/The-Benefits-of-Technology-Assisted-Review.pdf3 John Tredennick, ‘TAR for Smart People: How Technology Assisted Review Works and Why It Matters for Legal Professionals’ Catalyst(2015).
2computer software will finally order the number of documents chosen for review byrelevance so as to then be able to guide the process of review. The Courts opinion in McConnell Dowell Constructors (Aust) Pty Ltd v. SantamLtd & Ors (No 1) [2016] VSC 734Justice Vickery's decision in the case of McConnell could be said to reflect agrowing trend by international jurisdictions to use TAR to simplify the documentdiscovery process in cases of civil litigation. His Honour endorsed the idea of usingpredictive coding in the discovery process. In the view of Justice Vickery, arbitrationnormally involves issues pertaining to the implementation of a contract. Therefore,use of technology to de-duplicate will help in the reduction of about 4 milliondocuments to be read, to about 1.4 million. This is an aspect that was identified in theIrish Bank case4. In the view of the High Court, TAR is an accurate method ofidentifying documents. Consequently, Justice Vickery recognised that the time andexpense involved with using traditional methods to review this kind of material wouldbe prohibitive. As a result, there was a need to look to use TAR to reduce the volumeof material to be reviewed to a far more workable number of documents in thethousands. The Importance of McConnell Dowell Constructors (Aust) Pty Ltd v. Santam Ltd &Ors (No 1) [2016] VSC 734The Supreme Court's decision in this case is significant because it was the firstin Australia to order TAR's use to reduce the time and effort otherwise typicallyinvolved with discovering documents in cases of civil litigation (see Vickery, 2015and Warren, 2015 – see also Money Max Int Pty Limited (Trustee) v. QBE InsuranceGroup Limited [2016] FCAFC 148). In so doing, the decision of the Court in this casein Australia followed several other major western jurisdictions, including the UK5, theRepublic of Ireland6 and the United States of America7.4Irish Bank case Resolution Corporation Limited & Ors v. Sean Quinn & Ors [2015] IEHC 1755Pyrrho Investments Limited & Anr v. MWB Property Limited and Others [2016] EWHC 256 (Ch).6Irish Bank Resolution Corporation Limited & Ors v. Sean Quinn & Ors [2015] IEHC 175.7Rio Tinto Plc v. Vale SA (S.D.N.Y. Mar. 2, 2015) 1:14-cv-3042.
3The decision in this case, arose after a number of Practice Notes whichendorsed the use of electronic technology for purposes of ensuring that civil litigationis effective. A good example is Practice Note SC Gen 5, which recognised the use oftechnology in matters of civil litigation. From this Practice Note, it was observed thattechnology plays an important role in modern communication, and a large number ofcommunication processes are now carried out through the use of technological tools,and this includes the storage of communication documents (Supreme Court ofVictoria, 2017). Consequently, this Practice Note looked to expressly encourage the use ofelectronic documentation in civil litigation so that the use of ‘hard copy' will be theexception that needs to be justified (Supreme Court of Victoria, 2017). This isbecause, in the large cases in particular, it is believed that TAR will usually be anaccepted method for completing document discovery in civil litigation that a courtmay order regardless of whether the parties involved actually consented to it(Supreme Court of Victoria, 2017 – see also Federal Court of Australia, 2016).Benefits of using TAR in civil litigationDue to the extensive development of Australia as a commercial hub, the courtsand practitioners have a number of opportunities,8 so the legal system must operate in an efficient way to cater for the needs of individuals and businesses. The benefits considered in regards to TAR's use in cases of civil litigation include significant time and cost savings.9 It has been found that the amount of data to be reviewed in litigation is significantly increasing on an annual basis meaning that there is a need to look beyond the traditional review process to reduce both the time and costs involved for the end client. It was also discovered that cases that have used analytics went through fourtimes as many documents as those cases not utilising the technology.10 It isunderstood that TAR's use may serve to significantly reduce how many documentsneed to be reviewed in a particular case. This means that it is easier to efficiently and8Warren, M. (2015) ‘Australia – A vital commercial hub in the Asia Pacific region: Victoria – a commercial hub’ (Speech delivered at the Federal Court and Supreme Court Commercial Seminar, Monash Law Chambers, Melbourne, (2015).9 Christopher Paskach, Eli Nelson and Mathew Schwab,The Case for Technology Assisted Review and Statistical Sampling in Discovery Position Paper for DESI VI Workshop (ICAIL Conference, 8 June 2015)10 Nathan Wigginton, The Benefits of Technology Assisted Review, (2016) Sky Discovery
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