Insights / January 16th, 2024

Navigating the Challenges of AI in Discovery

Modern businesses create significant amounts of business records which stretch the discovery process in commercial disputes. The document review process in litigation is ripe for automation through use of AI.

Discovery involves the compulsory sharing of relevant documents ahead of a trial. Aims of the process include narrowing the issues in dispute and fairness, such that both sides know what documents are available to the Court.

Despite its benefits, discovery in commercial disputes can generate significant disruption, cost, and delay. Civil procedure rules require litigants and lawyers to act in a manner in which the time spent and costs incurred are proportionate to the value and / or complexity of the relevant litigation, but at the same time require, in broad terms, that in the discovery process all relevant documents and only relevant documents will be discovered. The discovery process also recognises that some otherwise relevant documents – privileged material – must be capable of being identified and excluded from production.

Ensuring quality in automated discovery

Resolving the tension between these obligations is difficult due to the large volume of documentary records generated in some businesses. Larger businesses will now generate a significant volume of documents held only electronically and which must be considered for the purposes of discovery. The definitions of “document” used by Courts will require consideration of obvious types of electronic document such as Word documents, Excel spreadsheets, .pdf files and emails which have never been printed, but also images, direct messages and data held in accounting packages. Such records may be held in a series of different languages. The use of modern electronic communication systems also leads to the retention of large amounts of duplicated documents, for example within email chains. Finally, in some cases electronic business records may be accessible only using services provided by third parties, including by service providers operating from locations outside the Court’s jurisdiction.

The conventional approach to making discovery has involved lawyers providing advice to litigants as to what categories of documents may be relevant in light of the issues identified in the pleadings, litigants then delivering to their lawyers large volumes of records (in the past often contained in many archive boxes) and then teams of junior to intermediate lawyers considering and listing what was recognised to be relevant. The litigant was then expected to provide instructions that the list was complete and correct before it was filed.

Modernising discovery with AI

This approach, whilst potentially still appropriate to some types of disputes, soon becomes unwieldy, however, once very large volumes of records, in particular electronic records, need to be reviewed. There is also likely to be a point at which it will not be proportionate to the value and/or complexity of the subject matter of the litigation for a lawyer to review – even for a minute each – every candidate document for relevance ahead of making discovery.

The obvious practical question which arises, perhaps particularly for a litigant or insurer needing to fund litigation, is whether any aspect of the process may be automated at lower overall cost without detracting significantly from the quality of the process being carried out and whether this can occur within the rules of Court.

The answer to this question is that where all parties and the Court are committed to the process, and the overall cost is justified, software incorporating Artificial Intelligence characteristics can be and is already being used in Australia to automate the document review process.

Court approaches and the future of discovery

The second part of this insight will consider Court approaches to the use of Artificial Intelligence in making discovery and the future of discovery.

For further information regarding this topic please get in touch with Peter Leech of our Dispute Resolution team.

This publication has been prepared for general guidance on matters of interest only and does not constitute professional legal advice.  You should not act upon the information contained in this publication without obtaining specific professional legal advice.  No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication and to the extent permitted by law, Cowell Clarke does not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting or refraining to act in relation on the information contained in this publication or for any decision based on it.

Related Expertise