As noted in several pages of the April 2016 edition of the Hong Kong Lawyer, the use of predictive coding software as part of an e-discovery exercise was approved for the first time in civil proceedings by the courts in England & Wales. The English court’s judgment in Pyrrho Investments Ltd gives useful guidance on the use of predictive coding and essentially endorses the parties’ agreed approach. Soon after, news of the first English decision arising out of a dispute as to the use of predictive coding in an e-discovery exercise hit the headlines; at the time of writing, a judgment in BCA Trading is yet to be released*.
That said, the use of predictive coding software is now an accepted feature in the process of identifying electronic documents that are potentially relevant in large-scale document-heavy commercial disputes. The general principles that hold true for good practice in the English courts apply in Hong Kong (for which see the Feature article and Industry Insights in the April 2016 edition).
Commenting on the use of e-discovery tools and recent developments in his practice, Gary Yin (Partner at Smyth & Co in association with RPC) notes that:
“In my experience of electronic discovery exercises in Hong Kong, parties tend to be sensible in agreeing protocols between themselves and these recent English cases should assist parties in those endeavours”.
Richard Keady (Head of Disputes at Bird & Bird in Hong Kong) observes that:
“On the back of their experiences with electronic disclosure exercises, many law firms are now developing their own in-house capability, in order to save costs and build on their full service provider status. These recent English cases should assist with the Pilot Scheme and Practice Direction in Hong Kong”.
Patrick Rattigan (Partner at Haldanes) adds:
“A search for electronic documents in regulatory or contentious proceedings can be a challenging and time-consuming exercise for a client. Predictive coding (underpinned by judicial approval) assists. A law firm is also better off for having tech savvy paralegals or trainees to assist in the review process, once relevant documents have been identified by the client”.
* For example, search – http://www.bailii.org/databases.html. It has been widely reported that the decision approves of the use of predictive coding.