Predictive coding: taking the world by storm!

First the United States, then Ireland and England, and now Australia.

On a day to day basis, many of Kroll Ontrack’s clients use predictive coding to speed up their review and find key documents quickly in investigations and disputes. Predictive coding is a machine learning technology used in document review exercises, which learns from the decisions made about documents and applies the learning to documents which have not yet been reviewed to suggest (or “predict”) which ones are most likely to be relevant.

This technology has been used in US litigation for a number of years and has been approved by the US courts for almost as long. Other common law countries are now following suit.  Although European companies have been using predictive coding for just as long as Americans, until recently we didn’t have court approval to confirm that litigants can cut their review sets for discovery or disclosure purposes by relying on predictive coding to say which documents are unlikely to yield anything of interest. I was excited when this changed in March 2015, when the High Court of Ireland provided the first European approval of predictive coding in Irish Bank Resolution Corporation Ltd & v Quinn.   I was sure that the UK would be quick to follow and approve the use of such technology, which it did in February this year when the England and Wales High Court in Pyrrho Investments Ltd v MWB Property Ltd.

When I wrote about the Australian jurisdiction in Kroll Ontrack’s recent New Frontiers in Ediscovery report, released in September this year, I said:

“Popular newcomers, such as predictive coding are not nearly as common in Australia as they are in other jurisdictions. However, since predictive coding has become to be more accepted and judicially approved in several jurisdictions over the last few years, including Ireland and the United Kingdom, Australia is likely to follow.”

It followed quicker than we could have expected. Earlier this month, the Supreme Court of the Australian State of Victoria, in the case of McConnell Dowell Constructors v Santam, used the above cases in other jurisdictions as persuasive authorities to approve the use of predictive coding to reduce the number of documents to be reviewed for discovery in a dispute. This was based on a recommendation from the appointed Special Referee rather than a motion by one of the parties.

We should expect to see further use of predictive coding in Australia, as an operating procedure for predictive coding has been integrated into a new Technology in Civil Litigation Practice Note SC Gen 5, which will come into effect in January 2017.

I’m proud that Supreme Court of Victoria (my own home jurisdiction) is leading the way in Australia and has delivered an early Christmas present to us legal technologists out there!