Technology-Assisted Review From the Plaintiffs' Side

Article by Henry J Kelston, Ariana J Tadler and Paul McVoy
for Law Technology News






For all the importance that lawyers place on being rational, they sure have a tough time when it comes to embracing technology.

We accept that a doctor can suture a human heart using a computer-controlled robot in an operating room thousands of miles away. We know that computers enabled NASA to land a spaceship gently on Mars after a trip of 255 days traveling more than 40 million miles. We have seen an "intelligent" computer win at Jeopardy against the most successful human players. Yet we resist public acceptance of the notion that computer analytics can, at least in large cases with masses of electronic data, identify documents relevant to a lawsuit more effectively than lawyers composing lists of keywords.

That the legal profession is notoriously slow to adopt new technologies is hardly breaking news. However, the resistance among current practitioners to even consider the use of technology-assisted review, especially in large complex cases, is a particularly confounding episode of techno-legal disconnect. Even more confounding is the resistance to engage in open dialogue about the possibility of using TAR to facilitate cooperative, efficient, and expeditious discovery.

It is clear by now that TAR, implemented correctly in cases involving large-scale document review, can significantly reduce the costs and burdens of discovery. The failure to consider and, in certain cases, implement TAR can no longer be justified given the demonstrated efficacy of currently available TAR programs in comparison to human review.  Attorneys who fail to inform themselves about TAR and consider its application in appropriate cases may impede rather than facilitate the just, speedy, and inexpensive administration of justice.
 

In the RAND study of e-discovery costs, the RAND Institute asked why, given TAR's "potential to reduce review costs without compromising quality," the technology is not being used by more litigants. After extensive interviews with key legal personnel at major U.S. corporations, RAND identified major factors inhibiting adoption of TAR as concerns about the adequacy of the tools to perform certain tasks, such as locating "smoking gun" documents or identifying privileged or confidential information, and the perceived risk of using an evolving technology in the absence of judicial guidance

There are other factors that may be impeding the adoption of TAR in litigation. RAND reported, for example, that "there may be concerns that, with disclosure [of the use of TAR], opposing parties might enlarge the scope of the demand due to a perception of lower costs." Of course, a party eschewing TAR for this reason may find the court unreceptive to the argument that the requested discovery would entail undue burden and expense because the party is using antiquated tools.

 

To provide excellent legal services in today's environment, deeper knowledge of TAR tools is essential, along with the practical experience to implement them properly. Not every litigator can be an expert in e-discovery technologies. But every litigator should know when to find one.