Due to the escalating time, cost and burden of the discovery process we must look to use technology more effectively to manage today’s exponential growth in volumes of information.
The use of TAR (technology assisted review or predictive coding) should at least be one of the options that is considered.
So what is TAR?
I often forget when I start these posts that not everyone has full understanding of what TAR is.
In plain English, TAR is when lawyers train the software in areas of relevance, with the computer using algorithms to learn these calls and applying the calls to a wider set of documents. It is an iterative process that continues with the lawyer reviewing further documents until they are happy with the results.
The lawyer is at the forefront of the TAR process. The software learns from their expertise, as it is “trained” based on the knowledge of the lawyer. Check out my earlier posts for more in-depth explanation of Predictive Coding/TAR.
We are starting to see a greater number of judicial decisions endorsing the use of TAR that does assist in the acceptance of TAR. Although I have asked previously if we need to ask the Court to use technology, when it might improve the effectiveness and reduce the time and cost of the discovery process?
Regardless of whether TAR or any other approach is used, lawyers still have the same obligations to carry out discovery.
The Courts in New Zealand already promote TAR
The discovery rules in New Zealand have specifically identified the use of TAR/predictive coding as one of the options the parties may consider to help carry out discovery proportionately and cost effectively.
The courts require parties to “consider options to reduce the scope and burden of discovery” as well as “ensure technology is used efficiently and effectively”.
In many circumstances the use of TAR would promote the overriding objective of the High Court Rules, namely “to secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application”.
At least consider the use of TAR
In my time, I have witnessed TAR work well and not so well on a number of matters. I am not suggesting its use on all matters, but to at least be one of the options considered.
We simply need to continue to look at more effective ways to conduct the discovery process. More advanced technology options are now available, the key is to encourage greater adoption of these technologies.
TAR is a proven method to effectively get through large volumes of information. It is considerably faster, cheaper and more accurate than any human review method – can that be a bad thing !
I am sure most clients do not want to be paying lawyers to look at documents that a vast majority may be totally irrelevant.
If you have not considered the use of TAR as yet, then at least see if it might be an option on your next matter.
