At LegalTECH New York last week there was an astonishing amount of sessions focused on Technology Assisted Review (TAR). The buzz around TAR continues to grow, but still few are using it. Most of these sessions focused on a high-level overview of the technology, so there was a general feeling of frustration as attorneys wanted the panels to delve deeper. We’ve gotten to the point where everyone knows what TAR is, but they want to know if it is ready to be used and how to use it.
There is still a lot of mistrust around letting a computer help you with your work, but as Judge Peck says, “hands-on manual review… would be absurd nowadays” with many cases growing to terabytes of documents. Jessica Watts, Discovery Counsel at Hewlett-Packard, pointed out that you don’t have to disclose manual review procedures when challenged, but you do have to disclose computer methodology – ironically the computer is proven to be more consistent than a human being running on coffee and 3 hours of sleep.
So how do we learn to make the computer our friend and cut down review times? The first step is to understand that it’s called Technology Assisted Review for a reason – it isn’t supposed to replace you, it’s supposed to aid you. The second step is to begin to trust the computer by slowly integrating TAR into your workflow. Here is some advice we gleaned from a session with e-Discovery experts, including the Honorable Andrew Peck and the Honorable Frank Maas.
How should you approach using TAR?
- Make sure that your process is sound. A computer only does what you tell it to, so make sure that you have ample explanation and documentation for how you trained the computer, what seed set you used, and what quality control (QC) samples you ran.
- Tell opposing counsel from the start that you will be using TAR. Judge Peck says that in this “paranoid state” you should be upfront with your adversary to avoid any disagreements that might arise later in the process.
- Browning Marean, Senior Counsel at DLA Piper, suggests creating a “synthetic” document for your seed set. This document consists of what he would like to find in opposing counsel’s production. He then teaches the computer to look for similar documents. This can greatly cut down on the cost of reviewing opposing counsel’s documents.
- Try testing TAR in parallel with manual review to use as a comparison for your tagging.
- Be aware of Rule 502(d). Peck called this law a “total insurance policy” for any inadvertently produced privileged documents – it’s a provision that should be asked for in every case.
- Judge Maas recommends using the technology on your production set to see if it catches any privileged documents you may have missed.
You should always make sure your process is defensible, and in fact, this kind of technology is more easily defensible because of its consistency. It costs less money to iterate, you can test things over and over again cheaply and quickly. To paraphrase the Honorable Andrew Peck: there is no perfect fit, but a tired, hungry, and cranky attorney at 5pm is less likely to find the needle in the haystack than a computer.