In the first case where a disclosure exercise using predictive coding was tested at full trial in England, law firm BLP has achieved a successful outcome for its client, BCA. Predictive coding is the use of keyword search, filtering and sampling to automate portions of an e-discovery document review, with the aim being to reduce the number of irrelevant and non-responsive documents that need to be reviewed manually. BLP said it was particularly effective in a case such as Brown v BCA, which contained broad allegations of unfair prejudice and bad faith. These issues did not allow the formulation of a sensible set of key words for a traditional disclosure review. Instead, the computer was able to “learn” from the sample reviews performed by senior BLP lawyers in order to “educate” it.
The petitioner, Mr Brown, had alleged that BCA had acted in a manner that was unfairly prejudicial to his minority interest in Tradeouts, an on-line car dealing platform in which BCA had purchased a majority interest in 2014. Mr Brown sought an order for BCA to purchase his shareholding and valued the shares at £20m. In May 2016 BLP won the first contested application to use predictive coding as part of a substantial document review exercise in the case which proceeded to trial and judgment was handed down in favour of BCA. The disclosure provided was thoroughly tested at trial and the Judge relied heavily on it for his findings. The use of Predictive Coding had been approved for the first time by the English High Court earlier that year in the Pyrrho case, where both parties had agreed to its use.
The firm said that the predictive coding algorithm that was created as a result of the human review and refinement process was able to produce an impressive number of documents that were highly relevant to the issues, many of which would be unlikely to have been retrieved using a proportionate set of key words in a traditional process. Furthermore, it achieved results that were superior overall to a traditional review, at a much reduced cost to the client. The Judge found in favour of BCA on all issues, dismissed the unfair prejudice petition and awarded BCA its costs.
The firm said its disclosure technologies were being harnessed to offer clients early case assessments so that they could obtain an indication at the outset of an instruction whether the underlying documents are likely to support or undermine their case and adjust their strategy accordingly.