Digital White Papers

TECHNOLOGY-ASSISTED REVIEW 2.0 included keyword searching to reduce the initial volume of information, followed by the use of TAR. The plaintiffs sought to require Biomet to start its TAR process from scratch with plaintiffs' input. The court, citing proportionality principles, concluded Biomet's efforts complied with discovery obligations under the civil rules. As made evident by recent case law, judges are starting to expect attorneys will consider and at least occasionally use technology-assisted review. Accordingly, attorneys who have no understanding of TAR or who fail to consider TAR as an option may not be well-received in court. WHEN AND WHERE TO USE TAR Each case will differ in its goals, stakeholders, factual complexity, languages used, issues presented and levels of scrutiny. How do you determine when a case is well-suited for this technology? There are a few general best practices you can follow: •Large Sets of Documents: TAR can be a good fit when you need to cull down a large data set in a short amount of time. TAR is used often in connection with second requests by the Federal Trade Commission and the Antitrust Division of the U.S. Justice Department that fit that model. •Internal Investigations: Internal investigations lend themselves well to the use of TAR due to the absence of an opposing counsel or court applying strict oversight to the process. The primary advantages of TAR are its efficiency and prioritization. When conducting internal investigations, TAR allows a case team to focus on key documents quickly. •Litigation: When using TAR in the context of litigation, the case team must determine whether they will disclose to the other side up front that they intend to use TAR. When using TAR, they also need to decide how much information about their process they want to share with opposing counsel. While case law is still developing in this area, federal rules and local rules regarding Rule 26(f) meet and confer conferences help guide parties in their communications with opposing counsel. •Tight Deadlines: The short amount of time necessary to point a team to the most responsive documents is one of the most important benefits of TAR. •Issue Considerations: Algorithmic review works best with large, relative determinations or a handful of discrete issues, rather than many unrelated issues. RESOURCE SELECTION TAR is a tool that can be used to great advantage in a case, but it is not a substitute for expertise and a carefully vetted process. TAR will absorb the knowledge an attorney has of case documents and will execute instructions based on what the attorney tells it to do. If counsel does not communicate effectively with the TAR tool or too many attorneys train the tool, the output will not be as accurate as possible, no matter how powerful the tool. The assistance of a good vendor or consulting team can be invaluable in maximizing the potential of your TAR tool. Whatever an attorney's role in a case, it's important he/she be familiar and comfortable with the way in which TAR is being deployed. •Process: Be sure there is a well-documented process in place for the application of TAR and that it can be adapted to the matter at hand. Work with a vendor to develop this process before the initial review commences. •Early Use of Search Terms: It is an open question as to whether it is appropriate to use search terms prior to using TAR (see Re: Biomet M2a Magnum Hip Implant Products Liability Litigation).

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