In my last post on the EDRM blog, I discussed 3 reasons why people avoid using Technology Assisted Review (TAR)/predictive coding (and related technologies) in their cases. So, what can we do to change that? Here are 4 ways to promote using TAR in more cases.
Two things to note before I begin:
- Promoting the use of TAR is not just the responsibility of just one group here. Making a real difference involves action from lawyers, courts and the software providers that offer TAR solutions; and
- These are not just my thoughts – they are ideas and recommendations I’ve heard from other experts in the industry over the years.
What Lawyers Can Do
“Don’t hold TAR based approaches to a different standard than approaches based on keyword search.
Doug Austin, Editor, eDiscovery Today
Of course, lawyers are the key to increased TAR use in litigation. But, as I mentioned last time, there’s a: 1) lack of understanding of TAR, 2) an unwillingness to change what they’re doing, and 3) a desire to avoid having to be more transparent about their eDiscovery process when using TAR. Let’s talk about two ways to address these concerns:
Test TAR on a Prior Case First: It’s understandable that lawyers are reluctant to use TAR on a case that is active with tight deadlines – that’s not the best time to experiment and learn new workflows. Practicing the use of TAR with a case that’s already completed enables you to get used to the process without any deadlines or required outcomes to worry about, while giving you an outcome that has already occurred to measure against. If you’re missing important documents that you found in the case before, now is the time to adjust and learn how to identify them more accurately. Practicing TAR on a prior case may also uncover important documents you missed the first time, showing you just how powerful TAR can be!
Use TAR on Documents Produced to You: The biggest argument that lawyers may have regarding testing TAR on a prior case is the “ain’t nobody got time for that” argument. While you should make time to test TAR before actively using it on live cases, I get it – lawyers are busy and that’s not always feasible. What you can do is use TAR to conduct a review of documents that were produced to you. You have to review them anyway, right? Why not let the technology help you find the documents that are important?
One of the biggest advantages of testing TAR before using it on an active case and/or using TAR on documents produced to you is eliminating the defensibility requirement. You don’t have to be transparent when using it for your own needs and you can work out the process before using it for review and production in a case where you may have to be transparent.
What Courts Can Do
Speaking of transparency, let’s discuss what the courts can do to help promote the use of TAR. As Maura R. Grossman and Gordon V. Cormack noted in their (aforementioned, in part one) paper The eDiscovery Medicine Show, “The Ball is in The Courts’ Court”. Maura and Gordon, while acknowledging Sedona Principle 6, stated “producing parties should show—and the courts should demand that they show—the reasonableness of their eDiscovery search and review processes, as well as the resulting production, by hewing closely to tools, methods, and procedures that have been scientifically vetted and shown to be valid and reliable.”
Not that every case requires (or should require) that level of defensibility. Lacking a reason to otherwise question them, Sedona Principle 6, which states that “[r]esponding parties are best situated to evaluate the procedures, methodologies, and technologies appropriate for preserving and producing their own electronically stored information”, should be a sufficient barometer for parties’ handling of discovery in many cases without disputes over potential deficiencies in a party’s discovery process. Heck, even Judge Andrew Peck (ret.), the author of the first ruling to approve the use of TAR (and a strong advocate of TAR approaches), invoked that principle in Hyles v. New York City in ruling the defendant didn’t have to use TAR because of Sedona Principle 6.
What courts can do, most of all is:
Be Consistent: Don’t hold TAR based approaches to a different standard than approaches based on keyword search. What’s good for the goose is good for the gander! You can quote me on that! 
If TAR based approaches should be transparent, so should keyword search based approaches.
Lawyers can help here as well, by (at least) demanding the same level of transparency in TAR and keyword search. Too many legal professionals get keyword search wrong to assume people know what they’re doing and give them a pass.
What Software Providers Can Do
Let’s not leave software providers out of the mix here. They need to:
Make TAR (and Other Machine Learning Processes) More Intuitive: Part of the reason that lawyers eschew TAR is that software platforms make the workflow so different than what they’re used to doing with a traditional keyword search and review approach.
To the extent possible, machine learning needs to be baked into existing workflows so that lawyers almost don’t even realize they’re using TAR. All lawyers use machine learning technology these days – in platforms ranging from Netflix to Pandora to Amazon (and many more). It’s intuitive for them there, why can’t it be in eDiscovery platforms too? The good news is that several platforms seem to be moving in that direction, so this way of promoting TAR is already well underway.
Making strides in the use of TAR within the legal profession will not only require more from lawyers, but it will also require more from courts and providers, as well. Progress is always a group effort!
