For more than two years, parties to litigation in Jersey have been required to make "appropriate use of technology" to minimise the costs of e-discovery – now, for the first time since the introduction of a Royal Court Practice Direction in 2017, practitioners have guidance from the Court on what qualifies as "appropriate use".
The introduction of Royal Court Practice Direction 17/08, dealing specifically with the discovery of documents held in electronic form, provided practitioners with the first formal procedural framework for the use of electronic discovery platforms in the Island.
Amongst other things, parties to litigation are now required to minimise the costs of e-discovery by efficiently managing the process and making appropriate use of technology, adopting a collaborative approach to identify the scope of disclosure and the approach to be taken.
Although the Practice Direction came into force on 1 June 2017 there has been limited judicial consideration of what constitutes "appropriate use of technology". Useful guidance has however now been provided in a recent unreported decision of Advocate Matthew Thompson, Master of the Royal Court.
In the context of a large scale e-discovery exercise, potentially covering several million documents, the Master made clear that increased use should be made of technology to narrow down relevant documents for review before the process of manual review by lawyers. In particular, predictive coding should be employed to help the parties meet intended timeframes for disclosure.
Predictive coding, in very general terms, involves the use of technology as a preliminary step to reduce the number of documents which are to be manually reviewed within the disclosure process. At the start of the predictive coding cycle, a small number of senior reviewers will consider representative samples of documents and identify which documents within the sample sets are relevant and those that are not. The results are used to 'train' artificial intelligence software which then uses this information and applies it to another set of documents which the senior reviewers check for accuracy. Any incorrect results are corrected, with the process being repeated until the results are sufficiently accurate.
Once the results produced by the system are sufficiently accurate, the predictive coding will be applied to all of the electronic documents to be reviewed and only those that are relevant will be produced for the lawyers to consider and be listed for disclosure. The predictive coding process is able to significantly reduce the volume of documents that are reviewed by lawyers which is a useful tool when the volumes of documents to be reviewed are very high.
This approach to disclosure follows the approved use of predictive coding in England and the Master's judgment makes clear that in large scale e-discovery exercises, the "appropriate use of technology" requirement will necessitate an understanding and use of predictive coding methods.
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