Editor’s Note: The author of this post is a discovery and information governance consultant.
By Philip Favro, Driven, Inc.
This week, the High Court of England and Wales issued an order approving the use of predictive coding. As previously reported byBig Law Business, the order fromPyrrho Investments v. MWB Business Exchangewas the first of its kind in the U.K. The order has generated considerable excitement, including the usual marketing hyperbole from litigation support vendors and legal technology enthusiasts that predictive coding is now about to sweep the globe.
Beyond the hype, however, the real lessons fromPyrrho Investmentsare quite instructive, particularly for litigators in the United States. Those lessons have less to do with the proliferation of predictive coding than with the value of strategic cooperation in discovery.
Strategic cooperation generally allows parties to efficiently dispose of uncontested matters while enabling them to focus on merits-based issues. Cooperation has beenrepeatedly acknowledgedas one of the linchpins for effective discovery practice in both the U.S. and the UK. While the virtues of cooperation are often overlooked in the U.S. given the emphasis here on“zealous advocacy,” they have been more readily embraced in the UK. This reality is reflected in thePyrrho Investmentsopinion.
Strategic Cooperation at the Heart ofPyrrho Investments
While the obvious focus ofPyrrho Investmentsis its approval of predictive coding, its most striking aspect is the level of cooperation between the litigants. Unlike so many parties to American litigation, the litigants inPyrrho Investmentssought and found common ground to move discovery forward. The parties agreed that predictive coding should be used to identify the relevant information among the universe of 3.1 million documents. In addition, they apparently reached an accord on the predictive coding workflow. If this wasn’t stunning enough, the court observed that the parties also agreed on “the scope of the keywords to be employed.”
Nor was thePyrrho Investmentsopinion Pollyannaish in its assessment of the nature of the parties’ cooperative behavior. The court expected the parties to disagree over certain issues, particularly the scope of discovery in the case. As the court explained, “[t]here are or will be some areas of disagreement which will or may have to be determined later.” No doubt those differences will eventually have to be resolved, either informally or through motion practice. Nevertheless, the clients and counsel were able to strategically cooperate and move discovery forward – without yielding on key points of disagreement – in a proportionate and cost effective fashion.
The Contrast with U.S. Predictive Coding Jurisprudence
The contrast betweenPyrrho Investmentsand American predictive coding cases is striking. While there are likely many instances where parties to U.S. litigation have reached common ground on the use of predictive coding, few of thereported casesinvolve cooperative litigants. Moreover, two of the most significant predictive coding cases –Moore v Publicis GroupeandRio Tinto v. Vale– initially involved cooperative stipulations that quickly devolved into protracted motion practice over the agreed use of predictive coding.
Indeed, theRio Tintocourt had to take the unusual step of appointing a special master to manage a process that was initially designed to be self-executing. When the wrangling continued unabated, thecourt admonished“the parties and their counsel to cooperate more.” Doing so would obviate the “great expense” the clients had incurred over the use of predictive coding, which the court characterized as “a waste of money.”
Lessons regarding Cooperative Advocacy
As the contrasting examples ofPyrrho InvestmentsandRio Tintodemonstrate, adversarial cooperation is morethan just a trendy litigation tactictouted by academics and think tanks. It is a valuable strategy that counsel can employ to advance the merits of claims or defenses at a greatly reduced cost. While certain positionsmust be protectedin discovery and may even merit vigorous motion practice,Pyrrho Investmentsteaches that this can be done while strategically disposing of issues through cooperative advocacy. Discovery practice – regardless of whether it involves questions about the use predictive coding, the scope of ESI preservation, or other difficult matters – need not be aSisyphean task. With a cooperative litigation adversary, lawyers can use the discovery process as it was intended: to efficiently prepare matters for disposition through summary judgment, settlement, or trial.