In the past decade, technology-assisted review (TAR) has become an increasingly important tool in eDiscovery, a legal practice that collects and produces discovery documents electronically. TAR is a multi-step process that enhances the human review with computer software that identifies relevant documents for legal research. As lawyers train the software, it learns to accurately identify and highlight relevant information and ensure quality control.
Though the industry is generally averse to technological advancement, TAR is a rare exception that gained rapid adoption. With the release of TAR 2.0, however, some lawyers are unsure about whether that’s a worthwhile upgrade and how reliable, accurate, and beneficial the new version can be.
About Technology-Assisted Review
TAR, also known as computer-assisted review (CAR), is a tool to handle the review phase of eDiscovery using algorithms that can identify interesting documents. This dramatically improves the speed of reviewing discovery without sacrificing accuracy or thoroughness.
There are many different approaches to TAR, but it’s generally used to monitor documents in tandem with a human reviewer. Using natural language processing, a type of artificial intelligence, the system identifies words and phrases that may be important and tags them. The tags are usually based on privilege, relevance, and other details.
The best part of this tool is that it learns throughout the process, so it can identify and highlight documents that may be important and prioritize them. TAR has been accepted by US courts since Da Silva Moore v. Publicis Group & MSL Group.
What Are the Advantages and Disadvantages of Technology-Assisted Review?
TAR saves time and costs in eDiscovery by reviewing documents more quickly than a traditional manual review. Lawyers are no longer billing by the hour for tedious document review, ensuring that they’re focusing their efforts on high-level, strategic work.
With more advanced TAR tools coming out, it’s more affordable than it once was. TAR is no longer limited only to large and prestigious law firms and departments. It also comes in a variety of options, including cloud- and subscription-based solutions that eliminate upfront purchase costs and ongoing maintenance costs.
With continuous active learning models, the system learns concurrent to the review team, offering more efficient and defensible results. The intuitive dashboards are quick to learn, even for non-technical staff members. TAR lowers costs and faster timelines help lawyers strategize for cases quickly and thoroughly. Especially, with early case assessment and opportunities to choose witnesses and defenses early.
However, TAR does come with some disadvantages when it comes to transparency. Which is vital for the process, not only for its success but according to the law. As stated in Da Silva Moore, “transparency allows the opposing counsel (and the Court) to be more comfortable with the computer-assisted review, reducing fears about the so-called ‘black box of the technology.” Based on this decision, it’s important for lawyers to document every step of the TAR process to keep it transparent and defensible. With TAR 1.0, this may mean producing the seed set used for initial training.
TAR can reduce human error, but it’s important for lawyers to remember that it’s not infallible. If this is called into question, confidential or privileged documents could be disclosed alongside responsive documents. It’s vital for lawyers to enter into protective orders and clawback agreements that ensure the return of documents accidentally disclosed during discovery.
Finally, lawyers must have a thorough understanding of eDiscovery approaches to make the most of their capability. Using TAR can reduce time and costs, but only if it’s used correctly.
How Do Lawyers Use Technology-Assisted Review?
In the early stages of a case, lawyers may use TAR to assemble and review the documents likely to be produced by discovery. That information can then be used to advise a client on the best strategy. Lawyers can also use TAR to structure the case, identify parties to depose, develop strategic defenses, and other tasks related to the case. For many law firms, TAR is a tool for in-house lawyers to manage the eDiscovery process.
It’s important to note that TAR isn’t intended to replace humans, nor can it. TAR is used to enhance human efforts by offering improved speed, accuracy, and efficiency in the review process. It also reduces errors, which are common for lawyers after reviewing document after document.
What’s the Difference Between TAR 1.0 and TAR 2.0?
There are multiple types of TAR in development, but they can be categorized into these two formats:
TAR 1.0 is a subject matter expert conducting an initial review for privilege, relevancy, responsiveness, and other information from “seed sets” of documents. The review decisions are intended to train the software to spot important information and categorize the documents according to those parameters.
TAR 2.0 is similar, but it uses continuous active learning and an initial review by lawyers. The software continues to learn after the initial coding instructions, however. As the lawyers review the documents and the software utilizes coding decisions, the review process moves faster.
Outlook on Technology-Assisted Review
TAR has been revolutionary for helping eDiscovery teams achieve better efficiency, but not all lawyers and firms are on board with the increasingly complex technology and its capabilities. Some lawyers can’t live without it, while others think it’s time the technology retires. Ultimately, it comes down to using the tool correctly. Like other technology solutions, TAR is intended to enhance, and it needs to be used correctly to see its benefits.
There are also various other tools that can be used to streamline the process and reduce manual efforts, such as combining TAR with automation from law practice management software. Together, these tools can simplify the eDiscovery process and identify key information more quickly.
In an industry that’s generally slow to innovate, TAR was a quick disruption to the eDiscovery process. As AI becomes more prominent in the legal industry, TAR will like become more important to how law firms incorporate emerging technologies into their operations.
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