Technology Assisted Review (TAR) has been around for a good few years now and has been more commonly used on large litigation cases in the States and the UK.
Technology led Firms have been using it behind the scenes on larger cases in some shape or form for prioritising and targeting key documents, but never has its use been agreed by two parties to formally utilise this and approved by a Judge. Up until recently there hasn’t been any case law in Australia to use the technology on a live matter and that has made lawyers very nervous about embracing these types of tools.
But we now have two cases listed below in Australia whereby TAR was approved by the Judge (Justice Vickery):
Firstly, in Money Max Pty Ltd v QBE Insurance Group Ltd VID 513/2015 the Federal Court has ordered the Respondent to report to the Applicant an explanation of its use of TAR in providing discovery.
More significant is McConnell Dowell Constructors v Santam Ltd Ors 2016 VSC 734. Justice Vickery said:
“The central issue for the Court is this: given the enormous number of documents generated by the proceeding, how discovery should be managed, consistently with the principles of proportionality and Section 9 of the Civil Procedure Act 2010 (Vic.) (the ‘CPA’) which requires the Court to further the Overarching Purpose of the CPA when making orders or giving directions”.
The orders in the second allow for McConnell to review its 1.4 million documents using TAR. This is in line with some overseas judgements.
So why has Judge Vickery finally given the green light on such technology? In a nutshell, it’s down to cost and speed of review in the context of proportionality. A key goal for companies responding to discovery demands is to identify responsive documents in a cost-effective and defensible manner.
Using Technology Assisted Review allows companies to reduce the massive volume of data involved to a more manageable level by ranking, prioritising and classifying electronic data. Studies have consistently found that TAR processes yield more accurate and cost-effective results than traditional search methods.
The most common form of TAR is predictive coding, a process by which computer software is trained to identify responsive documents for production and then conducts the review process instead of humans.
As an initial step, a senior lawyer reviews a small subset of the overall universe of potentially responsive documents to develop a seed set of documents determined to be responsive or non-responsive. This seed set is used to train the e-discovery vendor’s proprietary computer software, which will then rank documents based on their likelihood of responsiveness.
The predictive coding process is iterative, and the senior lawyer will review subsequent subsets of the computer-classified documents to verify and improve TAR’s accuracy. When the program demonstrates the necessary level of accuracy after several such iterations, the rest of the documents will be reviewed using the program without human intervention beyond that necessary for quality control processes.
In the appropriate case, TAR can reduce costs while producing results that are as good as or better than those of a traditional review process. Before starting discovery, companies should consider whether TAR is appropriate for a case. When you proceed with TAR, implement best practices to support this decision if it’s challenged by opposing counsel. In our next blog piece, we will look at when using TAR is appropriate and in what type of cases.