Catching the Information Governance Wave
February 22, 2016
Solving the Privilege Conundrum
March 10, 2016

Lessons Learned From a UK Predictive Coding Order

This week, the High Court of England and Wales issued an order approving the use of predictive coding. As previously reported by Big Law Business, the order from Pyrrho Investments v. MWB Business Exchange was the first of its kind in the UK. The order has generated considerable excitement, including the usual marketing hyperbole from litigation support vendors and legal technology enthusiasts that predictive coding is now about to sweep the globe.

Beyond the hype, however, the real lessons from Pyrrho Investments are quite instructive, particularly for litigators in the United States. Those lessons have less to do with the proliferation of predictive coding than with the value of strategic cooperation in discovery.

Strategic cooperation generally allows parties to efficiently dispose of uncontested matters while enabling them to focus on merits-based issues. Cooperation has been repeatedly acknowledged as one of the linchpins for effective discovery practice in both the U.S. and the UK. While the virtues of cooperation are often overlooked in the U.S. given the emphasis here on “zealous advocacy,” they have been more readily embraced in the UK. This reality is reflected in the Pyrrho Investments opinion.

Strategic Cooperation at the Heart of Pyrrho Investments

While the obvious focus of Pyrrho Investments is its approval of predictive coding, its most striking aspect is the level of cooperation between the litigants. Unlike so many parties to American litigation, the litigants in Pyrrho Investments sought and found common ground to move discovery forward. The parties agreed that predictive coding should be used to identify the relevant information among the universe of 3.1 million documents. In addition, they apparently reached an accord on the predictive coding workflow. If this wasn’t stunning enough, the court observed that the parties also agreed on “the scope of the keywords to be employed.”

Nor was the Pyrrho Investments opinion Pollyannaish in its assessment of the nature of the parties’ cooperative behavior. The court expected the parties to disagree over certain issues, particularly the scope of discovery in the case. As the court explained, “[t]here are or will be some areas of disagreement which will or may have to be determined later.” No doubt those differences will eventually have to be resolved, either informally or through motion practice. Nevertheless, the clients and counsel were able to strategically cooperate and move discovery forward – without yielding on key points of disagreement – in a proportionate and cost effective fashion.

The Contrast with U.S. Predictive Coding Jurisprudence

The contrast between Pyrrho Investments and American predictive coding cases is striking. While there are likely many instances where parties to U.S. litigation have reached common ground on the use of predictive coding, few of the reported cases involve cooperative litigants. Moreover, two of the most significant predictive coding cases – Moore v Publicis Groupe and Rio Tinto v. Vale – initially involved cooperative stipulations that quickly devolved into protracted motion practice over the agreed use of predictive coding.

Indeed, the Rio Tinto court had to take the unusual step of appointing a special master to manage a process that was initially designed to be self-executing. When the wrangling continued unabated, the court admonished “the parties and their counsel to cooperate more.” Doing so would obviate the “great expense” the clients had incurred over the use of predictive coding, which the court characterized as “a waste of money.”

Lessons regarding Cooperative Advocacy

As the contrasting examples of Pyrrho Investments and Rio Tinto demonstrate, adversarial cooperation is more than just a trendy litigation tactic touted by academics and think tanks. It is a valuable strategy that counsel can employ to advance the merits of claims or defenses at a greatly reduced cost. While certain positions must be protected in discovery and may even merit vigorous motion practice, Pyrrho Investments teaches that this can be done while strategically disposing of issues through cooperative advocacy. Discovery practice – regardless of whether it involves questions about the use predictive coding, the scope of ESI preservation, or other difficult matters – need not be a Sisyphean task. With a cooperative litigation adversary, lawyers can use the discovery process as it was intended: to efficiently prepare matters for disposition through summary judgment, settlement, or trial.

Philip Favro
Philip Favro
Philip Favro acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Phil provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Phil is available to serve as a special master on issues related to electronic discovery. Phil is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Phil is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.
X