Predictive coding: Where now?

This week the use of predictive coding, or technology-assisted review, hit the headlines when the High Court ruled on its first contested use in a UK litigation disclosure exercise.

Berwin Leighton Paisner secured a victory for its client, BCA Trading, in the form of an order to use predictive coding technology as part of document review, the first time such an order has been granted.

Next week The Lawyer will host a free, live webcast to discuss the increasingly controversial topic of predictive coding in the wake of the BCA case.

The case highlights the growing interest in predictive coding in the UK. In February this year Master Matthews, the co-author of the leading text on disclosure, gave the first-ever formal judicial endorsement of the use of predictive coding in the UK when he granted approval for its use in Pyrrho Investments Ltd v MWB Property Ltd.

Although predictive coding has been used for several years in the US, its use in the UK is still in its infancy and several lawyers have expressed concerns over using it due to a variety of perceived risks.

In the US, where it has been used for several years, lawyers have expressed fears related to the lack of understanding in the underlying technology, the so-called ‘black box’ concerns.

“If people don’t understand how predictive coding works because they don’t understand the technology then there is a corresponding fear that a large proportion of documents relevant to their case could be left out,” claimed one US lawyer familiar with predictive coding.

There are also concerns over the level of transparency and co-operation required to use predictive coding in the adversarial litigation process, in that both sides of a dispute are required to participate in the process of ‘training’ the software that identifies relevant documents.

“The fear is that you will have to let your opponent see documents that they wouldn’t otherwise be entitled to see,” said the lawyer, “information that they consider sensitive and sacrosanct.”

The lawyer added that in his opinion predictive coding was a “fabulous tool” and significantly more cost efficient than traditional disclosure methods.

“But often, once people hear the other side wants to use predictive coding they immediately think they’ll have to reveal documents so they say ‘forget it’, he added.

Advocates of predictive coding, including lawyers and technology providers, claim it has the potential to dramatically reduce the cost of the disclosure process and indeed can be more accurate than traditional methods.

Next week’s webcast, held in association with FTI Consulting, will examine a range of issues raised by Pyrrho and the BCA Trading case and assess the impact they are likely to have.

Topics will include whether humans remain the gold standard when it comes to disclosure, whether in an era of booming levels of data and electronic documents the Pyrrho case will open the door to significantly greater use of predictive coding, and what the most important factors that need to be considered when deciding to use predictive coding are.

The webcast will feature a panel of experts who will offer views from the standpoint of technology providers, private practice and clients: Jonathan Fowler, senior director and predictive coding expert at FTI Consulting; Giulia Da Re, litigation lawyer for Lloyds Banking Group; and Mark Chesher, legal director for Addleshaw Goddard.