What Lawyers Must Know About Technology Assisted Review

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[author: Sandra D. Burch]

In the eDiscovery community, Technology Assisted Review (TAR) is the most talked about subject of 2011-2012. TAR is a marketing term used interchangeably with “predictive coding,” “machine assisted review,” “computer assisted review,” and “meaning based computing.” Yes, technology has advanced to the point that, with training, it literally can think for you. Putting it in the simplest terms, senior level attorneys review documents selected by the computer, make a determination about each document’s relevance, inform the computer of those determinations, and the computer “learns” how to identify similar documents and exclude dissimilar ones. With the ever increasing volumes of electronically stored information (ESI) in existence today, it would appear to be a document review team’s dream come true. Fueled by vendors who are eager to sell their products and services, clients who are demanding more efficiency, and now endorsements by members of the Federal judiciary, the buzz around TAR has reached a state of frenzy. What do West Virginia defense lawyers need to know about TAR? 
 
TREC 2011 Legal Track, an annual government-sponsored project designed to assess the ability of information retrieval techniques to meet the needs of the legal profession, concluded that TAR is at least as good as manual document review and far more cost effective.

On February 24, 2012 in Da Silva Moore v. Publicis Groupe & MLs Group, No. 11 Civ. 1279 (ALC)(AJP) (S.D.N.Y. Feb. 24, 2012), Magistrate Judge Andrew Peck issued an opinion approving the use of TAR for ESI, making it the first Federal case ever to recognize TAR as an acceptable way to identify relevant ESI. Notably, however, Peck was not faced with the issue of two parties arguing about the propriety of TAR in general, as the parties had agreed to the use of TAR but struggled with defining a mutually-agreeable protocol. Plaintiffs objected to the ruling claiming that the court-approved TAR protocol “risks failing to capture a staggering 65% of the relevant documents in this case” and went so far as to ask Judge Peck to recuse himself because of an alleged relationship with defense counsel and the vendor selected for the case. Judge Peck swiftly issued an order denying Plaintiffs’ request. Judge Andrew Carter later affirmed Judge Peck’s decision.

In March, 2012, in Kleen Products LLC v. Packaging Corporation of America, et al., Magistrate Judge Nan Nolan sitting in the United States District Court for the Northern District of Illinois was faced with plaintiffs who asked that defendants be ordered to redo part of their production and use TAR in lieu of keyword searches. Relying on the Sedona Principles, Judge Nolan confirmed that opposing parties cannot dictate what technology solutions their opponents must use, and that “the responding parties are better suited to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own [ESI].” In August 2012, after months of debate, the parties reached an agreement to drop the TAR-based approach, at least for the first request for production.

On April 23, 2012, a Virginia state court case, Global Aerospace Inc., et al, v. Landow Aviation, L.P. dba Dulles Jet Center, et al, Consolidated Case No. CL 61040, Circuit Court of Loudoun County, became the first in which TAR was actually ordered despite the plaintiff’s objections that the technology was not as effective as purely human review.

Despite all the hype, according to a 2012 Legal Tech New York survey (conducted by Symantec), 97% of respondents were familiar with TAR, yet only 12% have adopted TAR. This statistic is understandable given the complexity of the protocols necessary in order to assure that your review is thorough, transparent and defensible. There is no “Easy” button on this technology. Caution is warranted, particularly because one wrong step could leave you facing sanctions.

On August 6, 2012 Rule 1.1 of the ABA Model Rules of Professional Conduct was amended to state that a lawyer’s competence must now include knowledge of “the benefits and risks associated with relevant technology.” Today’s practicing attorneys need to know that TAR exists and, for some cases, it is acceptable and even necessary to use if the proper procedures, protocols and workflows are in place. The debate rages over whether it should replace keyword searching. Rational minds are recommending the combined use of both. No uniform standards have been set and they are not likely to be set anytime soon.

TAR has the ability to reduce terabytes of information to megabytes of relevant information. It can save hundreds of hours of attorney review time. However, TAR is not cheap. In fact, it is not affordable for most small to medium-sized law firms. Corporations with large legal departments may have either their own in-house team or a national discovery counsel. If you do not have access to in-house or client-provided resources and the case warrants the use of TAR, you likely are better served by hiring a vendor who not only has the software, but the developers and the project managers who understand how to use it.

If you do intend to bring TAR in-house, do your homework and involve your firm’s IT and litigation support team. There are a plethora of options on the market and more being developed at rapid pace. Exactly how these systems identify relevant documents is not transparent. TAR theories, underlying probability theories and related dimension reduction systems explain how it’s done, but the sales department is going to want to give you only a three thousand foot view making it difficult to compare various offerings.

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