Speaking at the Innoxcell Asia Symposium, Law in Order director Paul Gooderick said courts in Australia were being left behind by those in the UK, Ireland and the US, all of which had recognised the validity of computer-assisted review in litigation.
A recent English High Court judgment in Pyrrho Investments v MWB Property cited 10 reasons why electronic review, including predictive coding, could be advantageous, with “no factors of any weight pointing in the opposite direction”.
By contrast, Australia has not seen a similar decision on the merits of electronic review, Mr Gooderick said.
“I think we should all be challenging ourselves to get Australia on the map – when are we going to get some judicial support for the use of technology in our market?"
He added: “I urge all of you, when the opportunities arise, to really take hold of them and see if you can influence the judiciary or push the use of technology.”
In Australia, the e-discovery market is worth $10 billion, he suggested.
In the past 10 to 15 years, he said the market has reached a point where the “peak of inflated expectation” had passed and now “we have come out the other side, to where we actually start using the technologies”.
Reflecting on differences between e-discovery in the US and Australia, he noted that firms had a more active role down under in pursuing innovative solutions.
"In the market we play in, there are a number of unusual dimensions in the sense that we’re largely providing our services to law firms – which is different to the US, where it seems the dominant part of the market is derived from in-house counsel."
Nonetheless, he warned both in-house teams and firms must carefully weigh up the cost-savings offered by new technology solutions with the potential risks.
While new technology offers potential cost-savings, the potential risks are often what hold firms back from pursuing these initiatives.
“The key barrier to innovation in our market is risk – a small mistake or miss can have massive ramifications in a matter,” he said.
However, in some cases firms must rethink the weight given to each of these factors.
“In my view, the lines between these three [risk, innovation and cost] are often poorly drawn or ill-considered.”
He said: “I’m not suggesting we have the perfect answer, but there are so many dynamics in play there that more consideration of those elements and where you sit on the continuum is important when making decisions about technology.”
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