In the early days of Technology Assisted Review (TAR), lawyers were sometimes hesitant about discussing TAR tools with opposing parties and the courts. Apart from a general concern about their ability to explain how the algorithms underlying predictive coding tools operated, litigators were unsure about what information to disclose and how to negotiate a “TAR Protocol” with opposing counsel. A number of courts quickly took the position that they would not micromanage the TAR process, but rather would encourage the parties to work together. The producing party generally determines the best way to produce documents and the receiving party can challenge this if it deems the production to be insufficient.

Key Case Law

Two decisions have proven to be instructive on this topic:

• In the case Dynamo Holdings Ltd. Partnership v Commissioner of Internal Revenue 143 T.C. 183 (U.S.T.C. Sept. 17, 2014), a Tax Court stated: “[T]he Court is not normally in the business of dictating to parties the process that they should use when responding to discovery. If our focus were on paper discovery, we would not (for example) be dictating to a party the manner in which it should review documents for responsiveness or privilege, such as whether that review should be done by a paralegal, a junior attorney, or a senior attorney.” The Court went on to note that the respondent can always file another motion to compel if the production appears incomplete.

• In Winfield v. City of New York, 2017 WL 5664852 (S.D.N.Y Nov. 27, 2017), the Court directed the City to complete a linear review of the documents of certain custodians, and to also begin using TAR software “to hasten the identification, review, and production of documents responsive to Plaintiffs’ document requests.” The Plaintiffs objected to the City’s continued use of its TAR approach and contended that the system was not properly trained because the City’s human document reviewers over-designated documents as non-responsive during the linear review and TAR training stages. As a result, Plaintiffs asserted that the TAR software was unable to recognize and properly categorize responsive documents.

The judge disagreed, allowing the producing party to evaluate procedures, methodologies, and technologies for its own production as it was generally better equipped to make this decision. The Winfield court recognized that micromanaging internal review processes could reveal work product, litigation tactics, and trial strategy. Perfection was not required. The producing party just needed to advance reasonable and proportional production efforts.

Best Practices

The case law above has remained solid guidance over the years even with technology advancements. Here are four points to consider when deciding whether to deploy TAR and other types of analytics tools in litigated matters that can streamline the process of assessing and reviewing data during litigation:

1. At the inception of a new matter, work closely with your eDiscovery partner to discuss the facts of the case, type of matter, case themes, financial implications, and overall importance to the organization. These details are helpful for making recommendations about which analytics tools may be beneficial in litigating the case.

2. Discuss the types of data that may be involved in the matter. Certain types of data may not lend themselves naturally to the use of analytics tools, such as CAD drawings or financial spreadsheets. Newly emerging data types like Teams or Slack will likely have specific requirements around collection, as well as the processing, analysis and review. It is important to have a thorough understanding of the type and scope of data involved in the case before deciding how to proceed.

3. Be upfront with opposing counsel about the intention to use TAR solutions. Consider disclosing details about the TAR process without limiting the producing team’s flexibility in deciding how to proceed. Common disclosures include the name of the analytics tool, the proposed workflow, and the types of metrics shared at production. It is uncommon for parties to agree to defined statistics, shared training, or specific training documents. The producing party generally does not need to share information considered work product or that would influence TAR training.

4. The focus has shifted from an upfront debate about the TAR protocols deployed to an analysis of the actual produced data. Although courts have not been willing to dictate how parties should proceed, they have been amenable to considering whether the production was complete if the production is challenged. Producing parties should be able to explain methodologies in the event of a challenge and receiving parties should understand that their right to challenge production is in no way affected by TAR usage.

Keeping informed of new case law and emerging technology trends will help counsel better position TAR effectively in litigation. Cooperation and transparency can help streamline matters and avoid the time and cost associated with extra motion practice.

This blog post is derived from the Chapter titled “Outsourced Document Review:  Data Intelligence, Technologist Lawyers, Advocacy Support” by Ed Burke and Allison Dunham, which appears in the Thomson Reuters treatise eDiscovery for Corporate Counsel (2022).  Reprinted with permission, © 2022, Thomson Reuters. Brett Beeman contributed to this blog.

A link to the book appears below:
https://store.legal.thomsonreuters.com/law-products/Treatises/eDiscovery-for-Corporate-Counsel-2022-ed/p/106770308