The Supreme Court of Victoria has issued a formal Practice Note that further validates the use of technology-assisted review (TAR). The progressive new Practice Note (SC Gen 5 – Guidelines for the Use of Technology) went live on January 30.
Australia has been on the edge of a TAR revolution for a while. Without case law, however, many Australian lawyers are nervous about using the technology, according to Legaltech News. After the UK joined the United States and Ireland in approving TAR, it was only a matter of time before Australia added its name to the list of TAR-friendly nations.
In late 2016, two cases in the Australian courts opened the door for TAR:
- InMoney Max Pty Ltd. v. QBE Insurance Group Ltd., the Federal Court of Australia ordered the respondent to detail how it had used TAR for discovery.
- In McConnell Dowell Constructors v. Santam Ltd. Ors,Justice Peter Vickery ordered McConnell to consider using TAR to review 1.4 million documents, then appointed a special referee to manage the process. The judge cited several international cases in approving the use of TAR and said that in the future the court may order discovery by TAR, regardless of whether the parties consent.
Now, the Supreme Court of Victoria has issued its formal Practice Note to promote the effective use of technology to reduce the time and cost of civil litigation. It does not mandate a single approach to the use of technology because technologies and their use cases are likely to evolve and develop, according to Legaltech News.
The note states that “in larger cases, technology-assisted review will ordinarily be an accepted method of conducting a reasonable search in accordance with the Rules of Court.” It details acceptable TAR methodologies, including continuous active learning, simple active learning, and simple passive learning, and suggests what parties should consider in what goes into and comes out of TAR and what other culling techniques are employed in a TAR project.
The practice note also:
- Encourages parties to find and use the most cost-effective e-discovery solution, including the use of external providers
- Considers offerings that could work in tandem with TAR and asks parties to agree on procedures to remove duplicate content when possible
- Raises the bar for courts throughout the Asia-Pacific region so that TAR might spread throughout the region