More and more legal teams are using technology-assisted review (TAR) to expedite and lower the overall cost of their document review projects. Case law has illustrated the tool’s efficacy and its acceptance in the courts. Yet, some legal teams may still question its defensibility.
“When it comes to TAR adoption, we’re definitely past the early adopter stage,” said Danielle Panetta, senior e-discovery attorney at Goodwin. “But there still is a fear that TAR will miss something.”
Given the technology’s well-established merits, though—as well as its increasing popularity—there’s no reason to let that fear slow down your team or put you at a disadvantage on your next case. In fact, it can be easier than you think to evangelize TAR amongst your colleagues.
When making the case for TAR, consider the person you are trying to convince of its effectiveness. Some may view TAR as a black box of mystery and misunderstand how it really works. Others are more familiar with the basics and do not need that baseline understanding—but they do need evidence of its efficacy.
“Questions around TAR have changed slightly,” said Deepak Chheda, a senior director within FTI Consulting’s technology segment. “There is an appetite for analytics and machine learning. The questions I’m hearing are more nuanced. Misconceptions may include that TAR can only be used for data culling, which is not the case.”
"I do want to emphasize that making a case for TAR goes beyond someone's role," added Wendy King, a senior managing director within FTI Consulting’s technology segment. "You should consider other factors like their technological proficiency, their understanding of TAR, and your relationship with that individual. There are some general points though you can make based on their role."
When discussing TAR’s defensibility, you can deploy different tactics to help get the different roles of your team on board. Wendy King interviewed Danielle and Deepak on ways to talk about TAR with different professionals.
Here are some key points on advocating for TAR with your team based on an individual’s unique role and experience.
Get Internal Teams’ Hands in the Tool
The value of using innovative technology—and embracing the change that comes with it—is increasingly understood among legal professionals in today’s landscape. Still, some may be more wary than others to use TAR on a high-stakes case. When talking to your peers, Deepak advises showing them the impact it can have on some base-level cases first.
Have colleagues prioritize documents for review rather than use TAR to make independent coding decisions. Via this workflow, your colleagues can rest assured that there will be eyes on all documents for review—but they’ll be impressed to see how much more quickly it progresses, and how effectively the system serves up the most relevant documents first. Alternatively, you could also have them QC the first-level reviewer's work product with TAR for a similar effect.
“Over time, if we track the results and put metrics together, the benefits are clear,” Deepak said. “When your peers see that in use, they start to believe in the tool and use it on every matter."
Meeting Clients & Opposing Counsel Where They Are
Legal teams may worry that opening up a TAR negotiation with opposing counsel may lead to a needlessly complex and lengthy e-discovery process. As with all case strategy discussions, when speaking with clients and opposing counsel about using TAR, it is all about meeting them where they are. Understand and address their concerns.
For those less familiar with TAR, share resources and case law discussing TAR's history. Show them a sample of how TAR is used.
“People have to see how it works,” Danielle said. “They want to see that the tool is doing exactly what you told them it was going to do.”
For clients and counsel more familiar with TAR, their questions may focus on clarifying how it should be used in the particular case at hand. These questions may cover how to discern and navigate the appropriate level of transparency between the responding and requesting parties. Work together to address these details when developing your TAR protocol. As a team, you can engage in those conversations and negotiate the parameters in which TAR will best be used.
Know Your Processes for Courts & Regulators
When making a case for the value of TAR in front of a judge or with regulators, transparency is crucial. Courts and government officials want to know your process. Legal teams should be able to demonstrate a reasonable, detailed, and proportional search process to illustrate due diligence and the best possible intentions.
“This does not mean your TAR process needs to be perfect. But it should be reasonable,” Deepak said. After all, no one can say the human review process is perfect, either.
Go into these discussions prepared by having your narrative around TAR’s usage in your matter polished. Be ready to show that machine learning is done in a defensible manner. Illustrate that the search process demonstrates completeness. Have statistics and expert defenses validating your process for your audience.
“When you have your narrative around the process, it makes it easier to negotiate with other parties,” Deepak noted.