Since Judge Andrew Peck’s ruling over nine years ago in Da Silva Moore v. Publicis Groupe & MSL Group, the use of Technology-Assisted Review (TAR) for managing review in eDiscovery has been court approved. Yet many lawyers and legal professionals still don’t use machine learning (which, for many, is synonymous with TAR) in litigation. In the eDiscovery Today 2021 State of the Industry report, only 31.1% of respondents said they use TAR in all or most of their cases; 32.8% of respondents said they use it in very few or none of their cases. So, why don’t more lawyers use TAR?
Transparency and TAR
One possible reason that lawyers avoid the use of TAR is that requesting parties often demand more transparency with a TAR process than they do with a process involving keyword search and manual review. Judge Peck (retired magistrate judge and now Senior Counsel with DLA Piper) stated in the eDiscovery Today State of the Industry report: “Part of the problem remains requesting parties that seek such extensive involvement in the process and overly complex verification that responding parties are discouraged from using TAR.”
In the article Predictive Coding: Can It Get A Break?, author Gareth Evans, a partner at Redgrave, states: “Probably the greatest impediment to the use of predictive coding has been the argument that the party seeking to use it should agree to share its coding decisions on the documents used to train the predictive coding model, including providing to the opposing party the irrelevant documents in the training sets.”
Lawyer training vs. “black box” technology
Why do lawyers expect that they are entitled to more transparency with TAR? Perhaps a better question might be: why do they demand less transparency for keyword search and manual review? One reason might lie in the education and training that they receive to become lawyers. Many lawyers cut their teeth on the keyword search used for resources like Westlaw and Lexis. Consequently, keyword search is part of their experience and they feel comfortable using it.
Those same lawyers see keyword search and manual review for discovery as an extension of what they learned in law school. But it’s not. Search (aka “information retrieval”) is an expertise. Effective keyword search for discovery purposes is an iterative process that requires testing and verification of the search result set and the discard pile to confirm that the scope of the search wasn’t too narrowly focused. The end goal is to construct a search with both high recall and high precision; to identify those documents potentially responsive to a production request without also capturing non-responsive information, which can significantly increase review costs. This is very different from the goal of identifying a handful of documents that can assist in a case precedents argument.
With regard to TAR, many lawyers still see the technology as a “black box” that they don’t understand. So, when the other side proposes using TAR, they want a lot more transparency about the particular TAR process to be used. It’s simply human nature to ask more questions about things we don’t understand. But, truth be told, lawyers should probably be just as vigilant in seeking information about the opposing’s use of keyword search as they are when TAR is the approach being proposed.
TAR technology in daily lives
What many lawyers may not realize is that they’re already using the type of technology associated with TAR elsewhere in their lives — albeit with a different goal and lower stakes than in a legal case. TAR is based on a supervised machine learning algorithm, where the algorithm learns to deliver similar content based on human feedback. Choices we make in Amazon, Spotify, and Netflix influence what those platforms deliver to us as other choices we might want to see in terms of items to buy, songs to listen to or movies to watch. The process of “training” the algorithms that drive these platforms makes them more useful to us — just as the feedback we provide during a predictive coding process helps train the algorithm to identify documents most likely to be responsive to the case.
Conclusion
What should lawyers do when opposing counsel makes transparency demands regarding TAR processes to be used? Certainly, cooperation and discussion of the protocol as soon as possible — such as the Rule 26(f) “meet and confer” between the parties — can help everyone get “on the same page” about what information can or should be shared, no matter what approach is proposed.
However, if the parties can’t reach an accord regarding TAR transparency, perhaps another case ruling by Judge Peck — Hyles v. New York City — can be instructive here, where Judge Peck cited Sedona Principle 6. This principle states: “Responding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information.” Ironically, in Hyles, the requesting party was trying to force the responding party to use TAR, but Judge Peck, despite being an acknowledged “judicial advocate for the use of TAR in appropriate cases” denied the requesting party’s motion in that case. Transparency demands from requesting parties shouldn’t deter you from realizing the potential efficiency gains and cost savings resulting from an effective TAR process.
