Case Law

Australian Court Takes Predictive Coding Down Under

Federal Circuit

McConnell Dowell Constructors (Aust) Pty Ltd v. Santam Ltd & Ors (No 1), [2016] VSC 734 (Dec. 2, 2016) In this liability dispute in the Australian court system, the parties were faced with “massive costs” to review 1,400,000 documents and were unable to agree on an ediscovery technique. The court appointed a Special Referee to find a method that was effective, but also consistent with proportionality and pursuant to the Overarching Purpose of their Civil Procedure Act 2010 (“CPA”). The court noted that the “[predictive coding] process is far more sophisticated than a word search facility” and that traditional discovery methods were not appropriate for a case of this size. The court found the adoption of predictive coding in Ireland, the United Kingdom and the United States persuasive, and recognizing its advantages, approved the use of predictive coding in an Australian legal proceeding for the first time.

Keywords: TAR, Proportionality, ESI, Efficiency, Relevance, Predictive Coding