Predicting the future of Electronic Discovery

Adoption of Technology Assisted Review to increase worldwide following a decision by the Irish High Court

Introduction

In the Irish High Court case Irish Bank Resolution Corporation Ltd & Ors v Quinn & Ors [2015] IEHC 175, Justice Fullam has delivered a landmark decision paving the way for Technology Assisted Review ('TAR').

TAR or predictive coding is an alternative to the traditional linear1 review of documents and involves:

The linear review by senior members of a legal team of a sample 'seed' set of documents to identify whether they belong to certain categories (relevant, not relevant, privileged, etc.). Computer analysis to apply the characteristics of the sample 'seed' set to the full population of documents to group them into the same categories. The resulting reviewed document set is consistently categorised using a process which is both auditable and repeatable. For a more detailed discussion on TAR please refer to our previous Forensic Matters publications No.12-03 Is Predictive Coding the electronic discovery 'Magic Bullet'? (July 2012), and No.13-02 Death, taxes and computer assisted review (February 2013). Also note that Computer Assisted Review ('CAR') and Technology Assisted Review ('TAR') are interchangeable terms.

This Irish decision appears to be the first endorsement of TAR by a Common Law Court, and is further evidence of increasing judicial acceptance of predictive coding in jurisdictions across the globe. (See, for example, in the US, Da Silva Moore v Publicis Group, et. al.).

The decision is in line with the Sedona principles2, which in essence state that individual parties are the best people to evaluate the best process for producing electronic documents.

Background to the case

The principal plaintiff in this case, the Irish Bank Resolution Corporation Ltd ('IBRC'), is successor to the Anglo Irish Bank ('AIB') which is in liquidation. The defendants include Sean Quinn and his family (Sean Quinn was at one stage the richest Irishman in history). The plaintiffs claim that the defendants conspired to wrongfully convert bank assets of €455 million by arranging for AIB loans to Sean Quinn's wife, their five children, and ten other clients, for the purpose of buying shares in AIB in July 2008.

AIB hoped that these loans would help to unwind the significant stake Quinn had personally built-up (Quinn had discreetly purchased nearly 30% of AIB using complex financial derivatives), prop up the share price, and alleviate...