E-discoveryEarly preparation, transparency and proportionality are key to achieving cost effective e-discovery success

Senior Judges are encouraging litigants to avail of e-discovery technology that can introduce cost saving measures to litigants.

A large component of the fees in litigation is the cost of making extensive pre-trial discovery and specifically the cost of retaining a team of lawyers to manually review bundles of potentially discoverable documents. This traditional approach to litigation is no longer tenable. The Courts not only recognise the need for litigants to contain e-discovery costs they emphasise the need for parties and their lawyers to constructively engage with an opponent on the details of a reliable and transparent E-discovery exercise.

IBRC v Quinn1

In March the Commercial division of High Court endorsed the use of Technology-Assisted Review (“TAR”) to review approximately 680,000 potentially relevant documents.

TAR uses of a software program, trained by a person, to distinguish between relevant and non-relevant electronic documents. In summary, a sample set of documents is manually reviewed by a lawyer familiar with all elements of the case. The results of this manual review are then used to teach the computer to identify relevant and non-relevant documents. This process is repeated a number of times until the computer can predict, to a satisfactory level, the relevance or non-relevance of the sample sets of documents.

IBRC said the cost of going through these documents manually would be at least €2 million and would require 10 experienced reviewers a number of months to review. IBRC submitted the use of TAR would not only take significantly less time, it would also cost a fraction of a manual review. The Quinns claimed the TAR process was vulnerable to oversight and would not capture all relevant documents. The Court accepted IBRC’s position.

It is clear from his decision that Mr Justice Fullam was satisfied there was sufficient transparency in the TAR system to discharge a party’s discovery obligations. He noted that TAR predictive coding is likely to be a more speedy, less costly and more accurate method of discovery than manual review.

E-DISCOVERY

O’Leary v Volkswagen Group Ireland Limited2 More recently the Supreme Court indicated that though litigants must be prepared to adduce evidence of the steps taken to ensure compliance with a discovery order, that obligation, does not necessarily extend to disclosing the list of keywords to an opponent.

The dispute concerned the termination of a motor dealership contract. The plaintiff requested further and better discovery and sought an order directing the defendant to make further and better discovery. In particular, the plaintiff requested the defendant to furnish a list of keyword search terms used by it in conducting e-discovery. The plaintiff suspected that the search terms used by the defendant could have excluded important documents that the defendant was obliged to discover. The plaintiff contended that the search terms used by the defendant were inadequate even though over 59,700 documents, comprising both electronic and hard copy material, being identified, collected and presented for review.

Judge Laffoy noted that the process of searching by keywords “is not a perfect or foolproof process or, indeed, a villain proof process”.

The Supreme Court considered whether there was evidence before the High Court that it was probable that the keyword search terms used by the defendant and its advisers had failed to identify documents which should have been discovered, thus giving rise to the inference that the appropriate key terms had not been utilised. The Supreme Court noted that the trial judge was impressed by the evidence put before him of the manner in which the defendant and its advisers set about complying with the order for discovery after the deficiencies in the original affidavit were recognised and addressed. Taking that into account, the Supreme Court concluded that the defendant had complied with its discovery obligation insofar as was reasonably possible and found that there was no evidence that the steps taken by the defendant were not reasonable.

Lessons from these judgements

1 The Courts recognise e-discovery is not fool proof.

2 Technological tools to assist in e-discovery are acceptable.

3 The process of fixing search terms and identifying sources of documents must be transparent and professionally done.

4 There is no requirement to show your opponent your search terms and/to seek to agree them in advance.

For further information, please contact your usual Eversheds contact or:

Stephen Barry Senior Associate +353 1 6644284 stephenbarry@eversheds.ie

www.eversheds.ie

This information is for guidance purposes only. It does not constitute legal or professional advice.

Eversheds Ireland is a member of Eversheds International Limited.

EDUB.402 06/15

1 IBRC & Ors. v. Sean Quinn & Ors. (2011/5843P) March 2015 2

[2015] IESC 35