By: Marissa Louro
While the use of technology in the legal world is a debated topic, there is no doubt that computers provide better organization, simplify processes, and speed up the time-consuming nature of legal proceedings. Prior to technology, lawyers relied on books when citing case law in their briefs, motions, etc. By 1989, Westlaw and LexisNexis started offering computer programs to simply and speed up the research process. As time progressed, legal technology advanced. Throughout the 2000s, rules regarding the use of e-discovery developed as more and more attorneys began utilizing electronic data as evidence in legal proceedings. Particularly, 2015 marked an important year for e-discovery because courts addressed specific issues regarding the preservation and loss of electronic data. Major themes revolved around two theories: proportionality and preservation of information.
A legal issue garnering speculation—both nationally and internationally—is the use of technology-assisted review (“TAR”). This stems from the concept of effective document review, which judges have emphasized as an efficient means of examining discovery sets and other documents. Specifically, the use of “predictive coding” was initially approved in Da Silva Moore v. Publicis Groupe by Judge Peck of the U.S. District Court for the Southern District of New York. Essentially, predictive coding involves the use of software and algorithms to identify relevant documents to be used in a legal proceeding. Since Judge Peck’s landmark decision, many other U.S. courts followed suit and authorized (not required) the use of predictive coding. Even the High Court in the Republic of Ireland issued a decision approving the use of predictive coding in March of 2015.
On February 16, 2016, Master Matthews of the English High Court approved (for the first time) the use of predictive coding in the case of Pyrrho Investments and MWB Business Exchange v. MWB Property and others. Master Matthews stated, “[t]here is no evidence to show that the use of predictive coding software leads to less accurate evidence than, say, manual review alone.” He noted their Civil Procedure Rules do not mention how searches should be done or whether e-disclosure could be done through computer use. Citing Da Silva Moore (i.e., the U.S. landmark decision regarding predictive coding), Master Matthews approved the use of predictive coding and TAR. His decision was ultimately influenced by the concept of proportionality in that “[t]he cost of manually searching the documents would be enormous, amounting to several million pounds at least.” Ironically, other countries have previously criticized Americans’ use of technology in the legal system, particularly e-discovery, yet now they are following suit. The international presence of predictive coding will likely reinforce the U.S. legal system’s use of TAR. It is only a matter of time before all attorneys use predictive coding during litigation because of its convenience and consistency. While predictive coding will probably not be required in future court proceedings, it will likely be the preferred method of document review within the next few years. Just like algorithmic trading is dominating the U.S. securities markets, the use of algorithms in reviewing court documents will likely follow.
Marissa is a Staff Member on the Journal of High Technology Law. She is a 3L at Suffolk University Law School with a concentration in Business Law. Marissa holds a B.A. in Political Science from Providence College.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
