When Steven Whitaker was Senior Master in the Queen’s Bench Division, he was responsible for Practice Direction 31B and the Electronic Documents Questionnaire, and for the decision in Goodale v Ministry of Justice which was the first (and until very recently the only) High Court judgment which spoke of the merits of technology-assisted review.
These were significant steps towards the establishing the proper place of technology in helping with disclosure and in acknowledging its role in arriving at a just, equitable and cost-effective decision. I took the opportunity at Relativity Fest London to ask Steven Whitaker if we were moving in the right direction.
Steven Whitaker said that we are indeed going the right way. Before Goodale, no one acknowledged the role of technology beyond accepting the use of keywords. Keywords are referred to specifically in a heading within Practice Direction 31B, and Steven Whitaker wonders now if we should have been willing to cast off from that apparent limitation to keywords (although we did refer to "other forms of review").
There has long been anecdote of TAR being allowed in the Chancery Division or TCC, but we were not getting any published decisions to rely on. That meant that every prospective proponent of TAR had to keep going through the same arguments. For that reason, Steven Whitaker said, Pyrrho is a “Godsend" not least for its list of useful criteria (see the ten points at the end of the judgment here).
That has been followed in David Brown v BCA Trading, a contested case in which the registrar particularly stressed the saving in costs.
It is a blessing, Steven Whitaker said, that no one was tempted to ask in either of these cases what was in the algorithms or to set up comparisons between one type of TAR and another. Apart from the many difficulties this would cause because of the proprietary nature of the algorithms, the whole exercise would become disproportionate – you don't need to look under the bonnet to see how the engine works.
We talked about something I am always keen to promote – that these decisions are rooted in rules which we have had for some time. The recent Tchenguiz v Grant Thornton judgment (my article about it is here) showed the judge pointing to the Menu Option in Rule 31.5(7) CPR and observing that parties were not making sufficient use of the methods available to cut down disclosure; they are passing up a legitimate reason to disclose less while staying within the rules.
One of this blog's recurring themes is that too many lawyers don't know the rules which either directly relate to disclosure or which otherwise affect the procedural side of defining the scope, method and cost of disclosure. Anecdote suggests that not a few interlocutory judges are similarly deficient.
Steven Whitaker stresses the need for lawyer intelligence to be applied to the use of technology – he cannot think of many cases where you will simply point a technology-assisted review tool at the whole document population without thought about the issues and about what actually matters.
It all comes down to costs, of course, Steven Whitaker stressed. You are prospectively spending someone else's money and technology is a vital tool in helping with this.