You’ve been asked to develop strategy for negotiating the electronically stored information (ESI) protocol for a matter. On the list of things to consider is whether to include technology assisted review (TAR) provisions in the protocol.
Step 1: Understand What TAR is and is not.
Despite the fact that TAR can be a useful and effective tool, it may not be a good fit for every litigation or investigation
- TAR is… a development in the legal software industry that is used to prioritize or code documents based on seed sets coded by humans by extrapolating the human judgments to the remaining document collection using sophisticated algorithms or systematic rules.
- TAR is not…a magical process whereby a computer finds all relevant documents, properly codes them for responsiveness, identifies and withholds privileged documents, and slots everything for production. TAR is not an eliminator of human input.
Step 2: Consider the Circumstances
TAR can be used for culling documents or can be used in combination with search terms for prioritizing review- but practical concerns may weigh in favor of sticking with more traditional methods for culling and reviewing data. Consider the following:
- Type of Litigation and Documents: TAR tends to not fare as well in matters that are image-, chart- or diagram-heavy as compared to litigation that is based primarily on more textual documents. Similarly, financial documents, such as spreadsheets or ledgers, also do not typically enhance the TAR process. Therefore, litigation relying on these types of documents (e.g., patent litigation) may not be the best candidates for TAR.
- Level of Transparency or Collaboration: In a jurisdiction where there is precedent requiring collaboration and as the number of parties to a matter increase, it may become more difficult to reach a consensus on TAR disclosures, processes, or metrics. Similarly, if the discovery negotiations are particularly adversarial, TAR may not be the best fit.
- Existing Litigation Readiness: Defendants that are frequently targeted in litigation often invest in litigation readiness platforms and procedures that are typically based on keyword searches and may be reluctant to bypass these internal tools in favor of additional expenditure for TAR.
- Expected Volume of Documents in the ESI Collection: Although the technology is improving, TAR still requires significant set up and planning to “train” the system. The commitment and expense of training the system may outweigh the expected savings and efficiencies of using TAR if there is insufficient ESI volume remaining after training.
- Expected Richness Rate: Richness is the percentage of responsive documents across the whole ESI collection for a particular matter. Depending on the system and training methodology, TAR training may require review of random samples of documents pulled from the ESI collection until a statistically significant number of responsive documents are identified. If the ESI collection has a very low responsiveness rate, then more randomly selected documents would need to be reviewed to reach that statistically significant number of responsive documents. On the other hand, if the richness rate is particularly high, then fewer documents would need to be reviewed. The difference in time and expense spent to train the system could be significant.
For more on TAR, view To TAR or Not To Tar