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The nasty surprises in discovery

The nasty surprises in discovery

Lavan Legal’s Iain Freeman and Amelia Richmond-Scott argue that technology assisted review lessens the pain of discovery.

In Managing Justice: A Review of the Federal Civil Justice System, ALRC Report 89 (2000), the Australian Law Reform Commission noted that “in almost all studies of litigation, discovery is singled out as the procedure most open to abuse, the most costly and the most in need of court supervision and control”.

The discovery process in Western Australian courts is no exception.

In that regard, solicitors are often required to spend hundreds of hours reviewing hundreds of thousands of documents, a significant number of which are irrelevant to the issues in dispute in the proceedings. 

Naturally, clients have to pay for the solicitors’ time in undertaking this review and are often left thousands of dollars (if not hundreds of thousands of dollars) out of pocket.

 

Positive Case Flow Management

Against that background, matters before the Supreme Court of Western Australia are now required, to the extent that the resources of the Court permit, to be managed and supervised in accordance with a system of positive case flow management for the purposes of (among other things):

1          promoting the just determination of litigation;

2          disposing efficiently of the business of the Court; and

3          ensuring the costs of the procedure are proportionate to the value, importance and complexity of the subject matter in dispute.

 

Accordingly, firms should now be proactive about finding innovative and cost efficient ways to conduct litigation, particularly in relation to discovery.  This includes using technology assisted review where appropriate. 

In that regard, Courts in the USA have already addressed the use of predictive coding technology in the discovery process.

In the leading case of Monique da Silva Moore, et.al Publicis Groupe v MSL Group , Judge Peck held that computer assisted review is an acceptable way to search relevant electronically stored information in appropriate cases.

 

Let’s sit down and talk

Earlier this month, Lavan Legal hosted a panel discussion with the Honourable Chief Justice Wayne Stewart Martin AC on technology assisted review in discovery.  The other panel members included Iain Freeman, partner in the Commercial Advice and Litigation team at Lavan Legal, Amelia Richmond-Scott, associate in the Commercial Advice and Litigation team at Lavan Legal, Marco Marcello, Information Systems Manager at Lavan Legal, Allison Stanfield, CEO of e.law International and Jeff Jarrett, Head of Client Solutions at e.law International. 

The interactive discussion canvassed a number of issues, including the nature of discovery in large litigation matters and new advancements in electronic discovery technology in Australia.

Of note, the panel discussed whether parties to proceedings can be said to have complied with their discovery obligations where technology assisted review is used. 

In that regard, the Chief Justice observed that the standard form affidavit of discovery used in Supreme Court proceedings is no longer appropriate in circumstances where technology assisted review is used (even if parties simply limit the number of documents that require linear review). 

His Honour went on to say that affidavits of discovery should clearly outline the discovery process that has been undertaken by the solicitors and the parties. 

Lavan Legal’s trial of the latest electronic discovery product offered by e.law (known as Relativity Analytics) was also discussed.

This product incorporates concept searching, categorisation and predictive coding features to improve the quality and reduce the time and cost of document review.

This is the first study of its kind in Australia.

The purpose of the case study was to determine the benefits of Analytics for clients, if any.  Specifically, the case study was to explore whether Relativity Analytics can:

●          improve the efficiency and speed of discovery in larger litigation matters;

●          reduce the manual work/labour required in the course of discovery; and

●          reduce the costs associated with discovery in larger litigation matters.

 

Lavan Legal and e.law were able to assess the effectiveness of Analytics by comparing the results achieved by solicitors in an active major litigation matter, against the results achieved by the software in reviewing the same documents. This included a comparison of the software against both the first internal review of the documents by junior reviewers and the documents ultimately discovered in the proceedings.

It is apparent from the case study undertaken that technology assisted review is an effective and accurate way of reducing the number of documents that require linear review by solicitors. 

Naturally, this will reduce the number of solicitors required to review the documents, thereby reducing the time spent on discovery and ultimately reducing the costs incurred by clients.

By way of example, it was apparent that the initial review team comprising junior solicitors achieved a “recall rate” of about 50 per cent after reviewing approximately 35,000 documents. 

That means that they initially captured 50 per cent of the relevant documents.

After reviewing only 4,500 documents for the purposes of the case study, Analytics achieved a recall rate of 50 per cent.

Put simply, the software review was as effective as the initial review team after reviewing only 15 per cent of the document set. 

The software becomes more accurate as the solicitors review or identify more documents.  Accordingly, by the time 10,000 documents were reviewed, Analytics would achieve a recall rate of 80 per cent.

 

Saving time and money

The use of technology assisted review to capture relevant documents reduces the manual work required in the course of discovery and reduces the costs associated with discovery in larger litigation matters. 

If firms want to conduct litigation in the most effective and cost efficient manner, then they will need to consider the use of technology assisted review in order to be competitive in the legal market. 

 

Iain Freeman (pictured top right) is a partner with Lavan Legal and Amelia Richmond-Scott (pictured top left) is an associate with Lavan Legal.

 

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The nasty surprises in discovery
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