English case provides e-discovery example for HK cases

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In a recent landmark decision concerning the discovery of electronic documents, England’s High Court approved the use of a predictive coding program to narrow the scope of relevant documents. The development is significant for litigants in Hong Kong, as this is the first time an English court has approved the use of predictive coding in the discovery of electronic documents (e-discovery).

blue-sphere-binaryPredictive coding is an electronic document review process involving the use of a machine learning algorithm to distinguish relevant from non-relevant documents, based on a human reviewer’s coding of sample sets of documents. The English case provides a useful reminder about the potential use of predictive coding in Hong Kong court proceedings.

Hong Kong’s Practice Direction “Pilot Scheme for Discovery and Provision of Electronically Stored Documents in Cases in the Commercial List”, which was modelled on its 2010 UK equivalent, explicitly refers to the use of technology assisted review (TAR).

IMPLICATIONS FOR HONG KONG

Because of the complex nature and volume of electronic documents, e-discovery has resulted in the development of specialized tools to filter relevant documents, including predictive coding and other forms of TAR.

The English case confirms that the use of predictive coding programs can lead to more proportionate and accurate disclosure. To recap, the main objective of the pilot scheme is to ensure proportionality and cost-effectiveness. Litigants are required to conduct a “reasonable search” of electronic documents for the purpose of e-discovery. What is reasonable depends on various factors, including the nature of the proceedings, the number of electronic documents and the ease and expense of their retrieval, and the significance of any electronic documents likely to be located during the search. In addition, the pilot scheme also directs the parties to discuss the use of tools and techniques to reduce the burden and cost of e-discovery.

Although the pilot scheme applies only to cases in the commercial list and cases where the parties agree to follow it or where the court so directs, the Hong Kong court has indicated that it may apply the general principles of the pilot scheme to e-discovery in cases to which it does not apply (Chinacast Education Corp v Chan Tze Ngon [2014]).

Business Law Digest is compiled with the assistance of Baker & McKenzie. Readers should not act on this information without seeking professional legal advice. You can contact Baker & McKenzie by e-mailing Danian Zhang (Shanghai) at: danian.zhang@bakermckenzie.com