“In law, nothing is certain but the expense” – Samuel Butler.
The cost of civil litigation has an outsized impact on access to justice. This is especially true in the United States, where many of the most important public policy decisions result not from the decisions of congress or the President, but from the decisions of courts (think Roe V Wade, or Brown v Topeka Board of Education). And in the case of civil litigation, one of the costliest aspects is the Discovery process.
eDiscovery, specifically ‘technology-assisted review’ or ‘TAR’, has the potential to significantly reduce the costs of civil litigation. In light of this, it is worth asking, what tests do courts in different jurisdictions apply to determine whether ediscovery solutions, such as predictive coding, are allowed?
In this piece, I compare the ‘proportionality’ test taken in the United States with the ‘reasonable search’ test applied in other jurisdictions. Specifically, I examine the ‘reasonable search’ test applied in the Australia state of Victoria, but similar tests are applied in other Australian states and in the United Kingdom.
In the United States Federal Rules of Civil Procedure, the ‘proportionality doctrine’ provides that the scope of Discovery is limited by whether:
“The burden or expense of the proposed discovery outweighs its likely benefit.”
It then lies for individual judges in federal court to determine how that test applies. In Moore v. Publicis Groupe, 287 F.R.D. 182 (2012), Judge Peck stated that: “Computer-assisted review appears to be better than the available alternatives, and thus should be used in appropriate cases.”
In a subsequent case, Rio Tinto PLC v. Vale S.A., No. 14 Civ. 3042 (RMB)(AJP), Judge Peck stated: “It is now black letter law that where the producing party wants to utilize TAR for document review, courts will permit it.”
So, in many cases at least, the US courts are comfortable that TAR gives effect to the proportionality doctrine.
In the Australian state of Victoria, Rule 29.01.1 of the Supreme Court (General Civil Procedure) Rules 2015, provides that the documents required to be discovered are documents which the party giving discovery is, “after a reasonable search”, aware of at the time of Discovery.
Clause 8.7 of the Supreme Court of Victoria Practice Note: Technology in Civil Litigation provides further context to this rule, and explicitly recognizes that “in larger cases, technology assisted review will ordinarily be an accepted method of conducting a reasonable search in accordance with the Rules of Court.”
In theory, the proportionality doctrine in the United States might be seen as more accepting of TAR or predictive coding: A court might find that even though manual discovery was extremely costly, as the benefits outweigh the costs, it is still worth pursuing. Whereas a court enforcing the ‘reasonable search’ standard might find that, in many cases, manual Discovery would not be reasonable, no matter what its benefits. However, in reality, courts in both the United States and Australia are all showing growing acceptance of predictive coding techniques in ediscovery, so it is unlikely that the slightly different tests will amount to much difference in reality.
In both jurisdictions, predictive coding will generally be seen as an effective way of keeping costs down.