With proposed procedural overhauls to disclosure going down like a lead balloon with the Law Society, technology is being touted as the much-needed saviour of time and money.
News in May that Bryan Cave Leighton Paisner (BCLP) declared itself the first firm to win a significant court victory on the back of using document review technology gave hope.
The firm represented BCA Trading in a 12-day High Court trial – an unfair prejudice case brought by a minority shareholder of Tradeouts, a business that BCA has a majority stake in. Crucially, BCLP used document review software from its own in-house forensic technology team.
Oliver Glynn-Jones, the BCLP partner who led on the dispute, says the technology has the potential to save as much as a third of the costs of a normal disclosure exercise. He adds that there is a minimum threshold, usually between 15,000 and 20,000 documents, required for the technology process to be worth the money, although ‘every single case for us reaches that amount of documents’.
Ed Crosse (pictured), a Simmons & Simmons litigation partner and member of the Disclosure Working Group (DWG), cites a recent case where technology saved his client roughly £2m. He estimates that a standard paralegal disclosure exercise would have cost £3m, whereas the technology ended up costing £1.1m.
While purported cost savings will inevitably catch clients’ eyes, Glynn-Jones is keen to highlight a less-discussed aspect: ‘Everyone always focuses on cost savings and it’s important, but if all it developed was sub-standard disclosure then it would be a very different debate. It is more accurate than a normal review. No matter how good a paralegal is, fatigue and mistakes happen.’
Associates need not fear for their jobs just yet though, as Hausfeld partner John McElroy points out: ‘There is currently no technology in the market that can carry out a disclosure review without human interaction.’
Artificial intelligence tools still require a significant amount of lawyer input – a partner familiar with the case is required to teach the technology what is and is not relevant based on a smaller sample of documents. By most accounts, the more experienced the lawyer, the better. The technology then uses machine learning to allocate a percentage accuracy rating to all of the documents. At this point, both litigation parties agree on an acceptable level of accuracy, which typically falls in the 90%+ range, and then, as Glynn-Jones says, ‘you press the button’.
More importantly though, how will these tools work alongside pre-existing disclosure reform efforts? The DWG, chaired by Lady Justice Gloster and including Crosse alongside Vodafone Group law chief Rosemary Martin and RPC partner Tim Brown, proposed scrapping the current regime in favour of ‘basic’ and ‘extended’ disclosure. The overriding aim is to give courts the final say if anything beyond the key documents necessary to each parties’ case needs to be disclosed.
Despite the Law Society since criticising the mooted reforms and saying they should be reserved for cases valued at more than £500,000, Crosse believes they go hand in hand with technology. He states that under the proposed rules there will be a mandatory obligation on parties to meet and discuss how best to go about integrating electronic data: ‘Instead of starting by asking the court “Can we use technology to review e-documents?”, the position is reversed – the parties will be required to explain whether they are using technology and if not, why not?’
When multimillion-pound savings, speed and accuracy are the benefits, it really should be an obligation.