Technology Assisted Review (“TAR”) – We have been expecting you!

As predicted in The Digital Advantage January post, LegalTech – Technology Assisted Review will be the theme, the buzz at LegalTech was indeed TAR.  Some will know the technology features as “Predictive Coding”, “Automated Review” or any number of other terms being used to explain what is at its core the same basic technology, despite what some would have you believe.  A recent Forbes article really presents the current problem with what should otherwise be quick adoption of this technology.  What Technology-Assisted Electronic Discovery Teaches Us About The Role Of Humans In Technology.

Some continue to think that courts are going to somehow sign off on “Predictive Coding”. 

Given the significant benefits that technology-assisted review can bring to e-discovery from the dual perspectives of quality and cost, expert commentators have asked a key question: Why isn’t everyone using it? Of the 11 e-discovery vendors surveyed by Kershaw & Howie, “[t]he most mentioned reason cited by respondents was uncertainty or fear about whether judges will accept predictive coding.” Kershaw & Howie, Crash or Soar (supra).

For the love of Pete, please stop thinking of this technology as something that the courts are going to “sign-off” on!! They will not.  Judge Peck said just that in the aforementioned Forbes article.   

“Until there is a judicial opinion approving (or even critiquing) the use of predictive coding, counsel will just have to rely on this article as a sign of judicial approval. In my opinion, computer-assisted coding should be used in those cases where it will help “secure the just, speedy, and inexpensive” determination of cases in our e-discovery world.”

The courts have for years encouraged the parties to cooperate and come to agreement on the filtering methods.  This attitude of expected cooperation on the discovery process is nothing new.  It is not something that the technologist dreamed up.  When you read the rules of any state or federal court, you will find agreement and cooperation mentioned frequently.  While most “predictive coding” applications are built upon the same basic statistical algorithms and linguistic pattern detection, they don’t all always achieve the same result.  This is because that how you conduct the analysis – the workflow is critical to the end result.  TAR is not the silver bullet alone.  Lawyers SHOULD NOT have to defend the technology – how the algorithms work, or what the technology does or does not do. Instead, we should focus on the workflow and the end result.  The technology being utilized should be transparent.  The workflow and end result should be based upon what a human decides is relevant.  For us at The Digital Advantage, there are really only two types of filters that need be explained. 

Objective Filters:  Objective filters are essentially filters that can be applied without any “subjective” reasoning.  File type and date range are two common examples (not an exhaustive list) of filters applied in most cases. These filters should not be considered work product.  Objective filters are often disclosed and agreed upon between the parties. 

 Subjective Filters:  Subjective judgment is applied to document decisions in most cases.  When a lawyer reviews a document, the “mental impressions” that lawyer makes is generally considered work product.  In the old days, we did not disclose how many “boxes” we reviewed to arrive at a production that may only be a few documents, or a few boxes out of hundreds.  We did not disclose what file cabinets were opened, or who was interviewed.  Then as is the case today, that production would occur in one of two forms (generally speaking).  Documents are either produced in their “usual course of business”, or “by request.”  In the “old days” we avoided producing “by request” as if it were the plague.  Search terms today are often used, and should often be disclosed as an “objective” filter.  A term is indeed an objective filter, but you may arrive at the use of a term using subjective factors.  You may even use “predictive” technology that, in its simplest form, looks for common words, concepts and patterns.  Either a document contains that word (or some variation) or it does not.  How you arrived at the term, however, may well be subjective and protected work product (some lawyer will make that call).  After all, attorneys are officers of the court and when responses are provided, the attorney for each party is representing that a diligent search has been conducted and that there has been compliance with the requests, or the appropriate objections have been lodged.   

As Jim Wagner recently wrote in his blog: “So, welcome to 2012, predictive coding. We’ve been expecting you.”  The Digital Advantage adds this warning: Don’t expect TAR to be a silver bullet. Without the right workflow, checks, balances and quality control, technology like this in the wrong hands can yield undesired results. So, if you are waiting on this technology to become “defensible” or some court to sign off on this technology or that, you will have a long wait. Meanwhile, the world is going to pass you by. If your practice is based upon a lot of document review hours, you may wake up one day and not recognize the world you live in. TAR is here and it is not going anywhere. There is plenty of help available for you.