ILTA Consults on New eDiscovery Active Learning / AI Rules

Today, the Special Interest Group (SIG) of the International Legal Technology Association (ILTA) has released its draft Best Practice guide for using Active Learning – i.e. AI-based machine learning technologies – in managing eDiscovery and eDisclosure. It is calling on all sector professionals to provide feedback.

The proposed Guide was compiled over a six-month period by Litigation Support professionals from: Norton Rose Fulbright, Eversheds Sutherland, Squire Patton Boggs, A&O Shearman, Linklaters, Ashurst, Fieldfisher, DLA Piper, Eltemate – a Hogan Lovells Technology Company, Travers Smith, RPC, and CMS, with the aim of ‘providing a technology agnostic blueprint for the most efficient and fairest way to conduct an Active Learning project’ the group said.

By way of background, SIG explained: ‘The conduct of eDisclosure (or eDiscovery) in England & Wales is mainly controlled by Court rules and Practice Directions which encourage parties to consider the use of eDiscovery software tools to search documents using keywords, email threading and other conventional techniques. Technology Assisted Review has been used for some years now, successfully. However recent developments in the use of AI in ‘Active Learning’ are not the subject of specific guidance, and there is a risk of negative impact on justice if techniques are inconsistent between parties or across the industry.’

James MacGregor, MD of Ethical eDiscovery, and who has played a key role in the project, told Artificial Lawyer that, at least in the UK, ‘there are no specific rules for the use of AI in eDiscovery, or what is called Active Learning. If you have more than 50,000 documents then you are meant to use technology for the review, but the rules don’t describe how to use machine learning [i.e. Active Learning systems].’

However, he added that the consultation will not specifically focus on newer generative AI tools, but rather focus on AI approaches where NLP machine learning is at the core, which have been with us for some years.

Meanwhile, retired High Court Master, Victoria McCloud, commented at a recent ILTA meeting: ‘It is essential that eDiscovery techniques are efficient, consistent, open and defensible. In the developing field of AI in law, and in the face of court backlogs, this Guide if adopted would reduce conflict between opposing parties over the technicalities of Active Learning. It would reduce some of the burden on courts of having to resolve arguments on the mechanics of eDisclosure.’

She added: ‘Active Learning in particular is a different beast from conventional search techniques because of its self-adjusting capabilities. The power of such a process must be balanced with clarity and this Guide is a vital step in that direction.’

It is the hope of the SIG that the final version of the document will be approved by the Master of the Rolls and the Civil Procedure Rules Committee for England & Wales. However, MacGregor added that as many countries do not have clearly defined rules for using Active Learning / AI, then the guide, once approved, could become useful on a global level, including in the US, which is the largest eDiscovery market on the planet.

The current version of the document is available for peer group review and feedback. The group noted that to be provided with access to this draft document please contact: laura@iltanet.org

The consultation will close on Friday, 20th September 2024, after which the document, with resolved edits, will be submitted to the Master of the Rolls in the UK.

P.S. On the subject of ILTA, Artificial Lawyer’s founder, Richard Tromans, will be speaking as part of a panel at ILTACon in Nashville this August about law firm use of AI.