As we reported previously, in May 2016 BLP secured an order from the High Court allowing us to use Predictive Coding in defence of a substantial unfair prejudice petition against our client BCA Trading, notwithstanding the objections of the petitioner. 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 BCA case proceeded to a 12 day trial in October 2017 and judgment was handed down in BCA’s favour. This is the first case that we are aware of in which a disclosure exercise using Predictive Coding has been tested at full trial in England.
Key facts of the case
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.
Predictive coding in action
The Predictive Coding disclosure exercise undertaken for BCA proved to be a success. The petitioner, having resisted it throughout, could find only minor ways to challenge its output, resulting in discrete further searches being performed by BLP.
Predictive Coding 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 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. While the converse is also true, i.e. that the Predictive Coding algorithm did not produce all of the same documents that would have been retrieved using key words, and Predictive Coding does not aspire to perfection, it is believed to achieve results that are superior overall to a traditional review, at a much reduced cost to the client.
During trial there was heavy reliance on the contemporaneous documents disclosed as a result of the Predictive Coding. The Judge found that the documents directly disproved a number of the petitioner’s allegations, and cast doubt on other aspects of his evidence.
The Judge found in favour of BCA on all issues, dismissed the unfair prejudice petition and awarded BCA its costs.
BLP's attitude towards legal technology
BLP has a track record for pioneering new technologies in order to offer cost savings and other benefits to clients. We are one of only a few firms with an in-house data processing, hosting and document review capability, and almost unique in having an in-house Predictive Coding resource. Our ability to handle all e-disclosure work in-house enables us to shape the exercise in a more streamlined way than when third parties are involved, using analytics technologies in addition to Predictive Coding in order to conduct reviews as efficiently as possible.
Our disclosure technologies are now being harnessed to offer clients early case assessments so that they can 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.
If you would like to know more about predictive coding, contact firstname.lastname@example.org. If you would like to hear more about how we can assist you in resolving disputes more generally, contact email@example.com.