It would appear that many still hold the use of TAR (technology assisted review or predictive coding) to a higher account to what they do more traditional practices.
With a traditional linear discovery review, we do not have to seek judicial permission over whether it is a law clerk, junior lawyer or senior lawyer conducting the review. We do not interrogate the relevancy calls made by the review team and the potential inconsistencies of the reviewers.
No one reviews the credentials of your review team.
Human review has its own problems
There is a common misconception that human review is perfect, or is the only risk free way of conducting a discovery review. Solely human review is not always as effective as one may think.
Human review (or lawyers looking at every single document), in most instances is no longer feasible or actually the ‘Gold Standard’ that many may have perceived it as.
The share volume of information these days, makes looking at every single document virtually impossible, especially if you want to reduce the time and cost of the process.
The days of linear review (document by document) are numbered, especially if we want to ensure the process is more effective. Much of the inefficiencies of the discovery process revolve around traditional practices like linear review, converting paper to images and keyword searching if the terms have not been truly tested.
Computers do not get tired !
Lawyers can get tired and also make mistakes.
Large scale manual reviews involving numerous lawyers often produce inconsistent results as the review team may have varying degrees of knowledge about the subject matter. In real terms what usually happens is by the end of the review exercise the reviewers have more grasp on the issues than what they may have had at the beginning.
Anyone that has conducted a large scale manual review with numerous lawyers will have experienced the considerable inconsistencies and lack of accuracy in their review. Many of the calls made by the initial reviewers frequently have to be corrected by senior lawyers later in the process – creating additional, yet avoidable work and cost.
Obligations for lawyers have not changed
It is worth remembering that lawyers still have the same obligations to carry out discovery – regardless of whether they use TAR or any other approach.
Like any approach with discovery, it is important to be able to substantiate your approach if it is ever called into question.
Even though the use of TAR should not be seen as a silver bullet to all of your discovery woes, its use should at the very least be considered.
