Bloomberg Law
March 25, 2016, 3:02 PM UTC

Perspective: Crucial Steps When Using Analytics During e-Discovery

Gabriela Baron

Editor’s Note: The author of this post oversees global business development at Xerox Legal Business Services, an e-Discovery company.

By Gabriela P. Baron, Xerox Legal Business Services

With the United Kingdom recently joining the United States and Ireland as three jurisdictions that support the use of technology-assisted review (TAR), litigators on both sides of the Atlantic are increasingly tasked with ensuring TAR is applied in a defensible manner.

InPyrrho Investments Ltd. v. MWB Property Ltd., a case before the High Court of Justice Chancery Division, a party faced the daunting task of reviewing 3.1 million files obtained from backup tapes. The parties had agreed to use TAR in their document review and approached the court seeking its approval. In a written decision issued on February 16, 2016, Master Matthews noted that no case law had yet spoken on the issue of automated review, and turned to the disclosure rules set forth in Practice Direction B, which support the use of “automated methods of searching if a full review of each and every document would be unreasonable.”

The court also quoted from U.S. Magistrate Judge Andrew Peck’s decision inDa Silva Moore v. Publicis Group, particularly his discussion of proportionality.

While Master Matthews’ judgment was based on a specific set of circumstances, and a particular TAR approach, many solutions fall under the TAR umbrella. With the number of US-based and cross-border matters on the rise, litigators are increasingly becoming educated on how TAR best practices, especially as it relates to defending its use to opposing parties and the court.

8 Key Attributes of a Defensible Technology-Assisted Review

With TAR acceptance by the courts growing internationally, both corporate and outside counsel are increasingly becoming involved in creating a replicable, defensible TAR process. Key to this process is:

  1. Building a team with TAR expertise.When it comes to TAR, lawyers are not morphing into software or statistics experts. In cases where TAR is used for culling prior to production — as opposed to prioritizing the data for review — legal teams are hiring experts who are well versed in these areas, so lawyers can concentrate on subject matter and case strategy. These experts are the ones defending (or explaining) the process if required to do so, either at a Rule 26(f) meet-and-confer, before a judge or via submission of an affidavit.


  • 2. Measuring the quality of results.To assure ongoing quality control and the integrity of the final product, statistically valid measures of precision and recall are typically checked at each stage of the TAR process and documented.


  • 3. Ensuring statistical validity.Statistical validity is a cornerstone of a successful TAR deployment. Legal teams can show that they calculated a set of defensible metrics for their particular matter through extensive testing, and that they have obtained measurements in a consistent and repeatable way.


  • 4. Utilizing an adaptive approach.Though TAR is often used to prioritize documents for review or for QC purposes, when it is used for document reduction, or culling, legal teams often conduct multiple cycles of review so the software can “learn” more each time, with the legal team analyzing results after each round, correcting and refining at every phase. Legal teams employ an iterative approach in order to ensure that TAR is deployed to its maximum benefit.


  • 5. Combining methodologies.TAR can be a powerful tool, but it is only one of the tools that counsel relies on to manage the realties of modern-day document review and productions. Other approaches, such as keyword searches, conceptual analysis, and random and judgmental sampling often are used in conjunction with TAR to leverage the strengths and offset the weaknesses of many techniques, and strengthen the quality of results.


  • 6. Reproducibility.To be defensible, the legal team must be able to replicate the processes and steps they used and achieve the same results with the same raw set of documents. This requires honed and consistent approaches and documentation.


  • 7. Creating an audit trail.To create a transparent process across the entire document collection, as well as around each individual decision, legal teams are creating standardized methodologies and approaches to reporting and documentation that can stand up to the scrutiny of opposing counsel and the courts (i.e., verifying how inputs were chosen, decisions were made and results achieved).


  • 8. Cooperation with opposing counsel.As the Federal Rules of Civil Procedure require, the Sedona Conference encourages, and the parties inPyrrhoillustrate, parties involved in litigation are increasingly cooperating with each other to clarify potential protocols for all aspects of the discovery process. The earlier this conversation is held the more beneficial it can be to the parties involved in the action. While this level of cooperation may be novel to many seasoned litigators, those doing so are able to achieve multiple benefits for the client.

Conclusion

ThePyrrhodecision underscores the importance of technology for ensuring that the burden of litigation remains proportionate. The court reviewed a primary “problem” of e-disclosure: “how the parties and (if disputed) the court determines what the scope of that search of electronically-stored information should be, how it is going to be made proportionate and how it is going to be carried out correctly [the] first time, without the court having to order it to be done again.” Given the increasing emphasis on proportionality in the procedural rules of courts around the world, legal teams are actively seeking to be involved in creating, and implementing a defensible process; savvy outside counsel already understand that this is a way for them to add value, differentiate their firms and increase client loyalty.

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