Help is on the Way: Technology Assisted Review (TAR) in E-Discovery
By Nancy Patton
It was not terribly long ago that electronically stored information collection and subsequent review looked a lot like this: gather up printed emails, scan them into the system with optical character recognition (OCR) set to “on," and through a rudimentary set of search tools, try to find responsive content. Or, perhaps those “paper emails" showed up in a big binder and the task was to flip through one-by-one, classifying the item, its keywords, and potential relevance in an accompanying spreadsheet which would then be turned over to a supervising attorney. Believe it or not, I was involved in trial prep using this latter method as recently as 2011. It was not a huge set of documents, but they were all printed, arranged into a 6" binder, which I flipped through one page at a time, looking for the “good stuff" and compiling an accompanying index in a spreadsheet.
Now, with the advent of Technology Assisted Review (TAR), we let computers find the “good stuff" through complex algorithms, statistical sampling, relevancy rankings, and other analytical factors. The contrast to the not-so-old-way is stark in many ways: time, money, tedium, and efficiency. And yet, I'd posit that TAR is still not used nearly as much as more manual methods. So why is TAR still a bit scary?
- First, lawyers and the legal profession in general do not quickly adapt to change and new ways of doing things. I'm not saying “all," but I am staying “by in large." Among our clients, I hear many people TALKING about Technology Assisted Review, but very few actually using it. It's definitely unchartered territory for many, and most lawyers are not going to be the first to walk in front.
- Second, you need to have someone who understands data and the issues at hand. One of the greatest challenges I witness from our clients is accessing internal resources who truly understand the organization's data and how that data is implicated in litigation, regulatory requests and compliance events. Without this knowledge, it will be difficult to lay the groundwork for a review project where TAR is the cornerstone
- Third, the judiciary is just beginning to embrace TAR. Many still consider it risky to push the envelope as it relates to judges and their comfort zones, where the outcome of a case hangs in the balance. Despite some federal case rulings in which judges have indicated their appreciation for TAR in terms of cost savings and efficiency, the onus is on the party using TAR to assure the judge that this technology was used responsibly and that relevant documents were indeed produced.
If the above factors weren't in play, then it would be easy to see the upside of TAR.
- Cost Savings: This one is obvious. If we can lower the amount of human time staring at a document (in whatever form), we can lower the cost of review.
- Time: Responding to a request for information is always time pressured. If we can reduce time, we can reduce pressure.
- Consistency: If you can apply the same codes to documents deemed “similar," you'll get more consistent results. And finally, efficiency, which really helps to feed the other three items.
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