Commonwealth countries continue to approve technology-assisted review (TAR) for e-discovery. In mid-2016 we started to see cases coming from the UK courts endorsing the use of TAR; recently, Australia followed suit.
In one case, the Australian Federal Court ordered one party to disclose several specific aspects of its TAR workflow to the opposing party. Meanwhile, the Supreme Court of Victoria went so far as to endorse the use of TAR to review 1.4 million records, and appointed a special referee to manage the process (see McConnell Dowell Constructors v. Santam Ltd.).
We already know that the use of TAR and predictive coding is prevalent in the United States (how else could the FBI have reviewed 650,000 emails in only 9 days?). In fact, US judges have not only given TAR their seal of approval, but have actually directed parties to use it. In Canada, however, our courts have not been so bold. We know that parties to litigation are slowly starting to accept and use TAR, but to date we have not seen any orders from Canadian courts requiring it, or specifically endorsing its use.
With so many matters being case managed, this is the perfect opportunity for Canadian courts to weigh in. Let’s hope 2017 is the year that TAR becomes trendy in Canada too.
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