Digital White Papers

TECHNOLOGY-ASSISTED REVIEW 2.0 most likely to be relevant, and the vendor — in conjunction with the case team — will implement a process that will often include some attorney review before documents are produced in a case. Technology-assisted review can be applied differently to each case. By using TAR, legal teams can opt to forego a linear or human responsiveness review entirely if their comfort level and the sensitivities of the review allow for it. Another frequent application is to have reviewers evaluate only those documents selected for production as an added safety check. In addition, statistical sampling often is included as part of the TAR process. BENEFITS OF TAR TAR can be deployed quickly for comparatively lowvalue operations, such as looking for confidential or personal information. There are many more benefits to utilizing the power of technology-assisted review. Prioritization: One of the primary benefits of TAR is the prioritization of the documents at hand. The algorithm feeds responsive documents to the legal team, placing the highest scores on documents deemed most likely to be responsive. There are different ways to deal with the output of documents. One method involves having an attorney team review this rich set of highly responsive documents. The remaining documents, or a subset of the remaining documents, (those deemed least likely to be responsive) can be sent to an offshore or lowercost review team. Alternatively, counsel can choose to run quality control and sample the "unlikely to be responsive" document set to ensure further human review is not necessary. with a fairly high degree of recall. This can be helpful, especially in situations when you have a stipulation under FRE 502(d), which enables you to claw back any privileged documents that may be produced. Quality of Review: Because TAR often can give you a confidence score of the responsiveness of each document, the process is more transparent than a traditional document review. The statistically based approach employed by TAR also lends itself well to the creation of useful reports. By looking at many data points, counsel can obtain information concerning the shared characteristics of groups of documents — information that may have gone unnoticed otherwise. Within the last few years, there have been several judicial opinions focused on technology-assisted review. In addition, statutes, rules and case law have made it clear lawyers must understand technology, including TAR and when it should be a consideration in a case. Turnaround Time: When you run into an eleventhhour data problem (for example, someone discovers a cache of additional data or a network share that hadn't been previously collected), it's possible — depending on how different the new data set is from the one on which you've trained your model — to deploy the model and classify documents on a tight deadline. You can even process a large corpus of data on a short turnaround. Privilege Classification: TAR can also be used to assist in classifying potentially privileged documents THE JUDICIARY WEIGHS IN: REAL-WORLD CASE LAW In 2012, the ABA passed an amendment to Comment 6 to Model Rule 1.1, which states: "to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with the technology." Further, the ABA Commission on Ethics noted the critical importance of this Comment given the growing importance of technology in modern practice. Whatever their role in a case, attorneys have an affirmative duty to understand how technology affects the case, whether TAR may be used and, if it is used, that it is used correctly. The first judicial opinion in which technology-assisted review was discussed in depth was Da Silva Moore v. Publicis Groupe. In this opinion, Magistrate Judge

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