Case Law: Is TAR Legally Defensible?

Posted by Staff Writer | Wed, Aug 31, 2022

Technology Assisted Review (TAR) is a process in which a machine learning algorithm automatically identifies relevant documents in a data set. TAR has become more and more common in recent years as technology has improved, and law firms have seen the benefits of using TAR in eDiscovery.

However, many lawyers are still unsure about whether TAR is legally defensible. To help clarify some myths and misconceptions, we will explore TAR from a legal standpoint and discuss some potential ethical concerns that may arise with its use. We will also examine how law firms can leverage TAR to improve their eDiscovery processes.

What is Technology Assisted Review (TAR)?

Technology-assisted review (TAR) uses machine learning algorithms to identify relevant documents in a data set automatically. TAR can be used in conjunction with human review or as a standalone method for document review and the eDiscovery process.

TAR, also known as computer-assisted review (CAR), is typically used in tandem with a human reviewer to improve the speed of review. The computer system can identify and tag words and phrases relevant to cases using a type of artificial intelligence (AI) known as natural language processing. This predictive coding software learns as it works, making it a valuable "smart tool" for review teams.

When is Human Review Required?

There are some instances where a human reviewer should focus their attention more carefully on the output. For example, if the data set contains confidential or privileged documents, it should be reviewed by a lawyer to ensure that no privileged information is released. A review team should always have the final say over documents produced in discovery.

In fact, studies have found that TAR identified a significantly higher percentage of responsive documents than attorney-supervised paralegals did. With the vast amount of data involved in the eDiscovery process, if you aren't utilizing TAR, you are likely missing valuable information.

However, TAR will always require a human touch. Predictive coding can only achieve so much. It is the human reviewer who will help the continuous active learning models improve, program the keyword search, tweak the TAR algorithm, and provide quality control. And it's the human who will harness the improved systems to make more accurate legal decisions.

How Are Relevant Documents Selected for TAR?

Documents are selected for TAR using a variety of methods, including keyword searches, concept searches, and predictive coding. The review team will guide the machine learning to improve accuracy and check for errors. Keep in mind that human error is common when managing vast amounts of data, and TAR can actually help reduce these potential issues.

Is TAR Legally Defensible?

Yes, TAR is legally defensible. In fact, many courts have accepted TAR as a valid method for document review. Federal Magistrate Judge Andrew Peck's decision in Da Silva Moore v. Publicis Groupe (Southern District of New York, 2012) was a landmark case upholding TAR in the eDiscovery process. Judge Peck found that TAR is, in fact, the best and most efficient tool for discovery in most cases.

Potential Ethical Concerns of TAR

There are some potential ethical concerns that may arise with the use of TAR. For example, if TAR is used to automatically identify relevant documents, there is a risk that privileged information may be released.

Other ethical quandaries have arisen regarding TAR. For example, should attorneys share seed sets (the data used to program TAR) with opposing counsel? While sharing a seed set seems like a straightforward act of cooperation, it could accidentally lead to sharing nonresponsive documents. Better to err on the side of caution than worry about clawback agreements to protect privilege than to share a seed set that could cause problems for your client.

Likewise, it's important that the human reviewers tasked with programming the TAR for the review phase build a defensible plan. TAR saves time, but only when you don't have to go back to correct sloppy work!

Meeting Clients and Opposing Counsel Where They Are 

As eDiscovery approaches evolve and TAR becomes more common, law firms need to be prepared to meet clients and opposing counsel where they are. This means being able to explain TAR in plain language and being able to defend its use in court.

For example, it's important to understand the very real limitations of TAR. While traditional manual review is slow, there is no limit to the types of documents you can review.

TAR is only capable of reviewing text-rich documents. This includes documents such as emails, Word documents, PowerPoints, etc. Unfortunately, TAR cannot yet be used to review spreadsheets, drawing files, images, blueprints, or videos.

Protecting Privileged Documents

When using TAR, it is important for legal teams to take steps to protect privileged documents. This can be done using a TAR platform with built-in security features or a third-party TAR provider. Additional human due diligence and professional conduct are also required.

How Law Firms Can Leverage TAR to Improve eDiscovery

TAR can be used to improve the eDiscovery process in several ways. For example, the TAR process can reduce the time and cost of document review for large and small legal teams. TAR software can also improve the accuracy of document review and information governance.

As the amount of electronic information continues to grow, we can expect the same of technology-assisted review in eDiscovery. Supported by courts and litigators for its ability to process enormous amounts of data and cut costs with superior accuracy to human reviewers, TAR is becoming more established in the eDiscovery process.

It has made what was once an incredibly time-consuming and expensive effort much more efficient. Thus, we are likely to see its popularity among lawyers grow. And as lawyers use it more, we will likely see additional case law support for the process, as well.

As it continues to prove invaluable in litigation, producing faster, more accurate results, we can expect some of the myths about TAR to disappear and people to put more trust in technology-assisted review. Legal professionals are warming to the idea of TAR as a method to save time and cut costs. Your firm can benefit by learning more and reducing fears about this topic.