A very interesting article by Mark Chesher from Addleshaw Goddard first of all providing a good explanation of Technology Assisted Review ("TAR") and the different passive and active tools/techniques that are available, and then illustrating how TAR is being considered in cases under the Disclosure Pilot scheme.
The Disclosure Pilot has now been extended for another year until the end of 2021 so it will be a while before the results of the scheme are published and potentially adopted in more places. Regardless of the Disclosure Pilot, TAR has been more and more commonly used on cases, but what the Disclosure Pilot has done is really put it front and centre in people's minds. So much so, that you now almost have to justify why you are not using it!
It is something we regularly use across a variety of cases and also for a variety of reasons - some to make the review more efficient and some to perform quality control functions. However, it is important to remember that TAR is no different to any other process run during a eDiscovery operation - you always need to verify the results and understand the process fully.
Following are ways to help enforce a more positively-derived outcome when implementing TAR tactics in litigation:
- Ensure that the configuration and boundaries are set up appropriately from a technical perspective – i.e. you know what you are telling the machine to do;
- Ensure that the document set is suitably prepared and of a suitable quality (for example, the textual extraction from documents used for the process is appropriate);
- Ensure that a suitable qualified and experienced person (on the case specifics) performs the training cycle(s) or commences the review if Continuous Active Learning (CAL) is used, so that they learn the systems appropriately;
- Have an idea of what you expect the process to generate and monitor it
- Continually monitor the progress and the statistical variables (e.g. overturns) to ensure it is acting as you expect
- Perform additional tests to verify the results…don’t just trust the machine blindly.
As Mark sums up at the end of the article: "Each case will present its own challenges, but a good working knowledge of the capabilities (and limitations) of the technologies available is important in order to ensure practitioners can guide parties through the disclosure in the most defensible and cost effective manner." I could not agree more with this statement - TAR is not a panacea that solves all ills, but it is certainly a tool that should be deployed on a very regular basis!
More than ever before, the rules in the Pilot have required parties (and their representatives) to have a clear understanding of the documents in their control. As noted by Sir Geoffrey Vos...in McParland & Partners Limited & Another v Whitehead...such an understanding is a vital starting point for formulating and responding to Model C requests for documents: “The parties need to start by considering what categories of documents likely to be in the parties’ possession are relevant to the contested issues before the court.” ...the Chancellor further commented in McParland that “Under standard disclosure, the test was whether a document supported or adversely affected a party’s ‘case’. This was far too general. Under the disclosure pilot, the reviewer has defined issues against which documents can be considered. The review should be a far more clinical exercise.”