Does TAR Method Affect Cooperation in eDiscovery?
Kudos to Joshua Rubin for a recent blog post in which he thoughtfully connects the dots regarding the relationship between technology-assisted review (TAR) and cooperation in eDiscovery.
With the amendment of Rule 1 of the Federal Rules of Civil Procedure poised to affect the principles of proportionality and cooperation, Rubin suggests that the TAR method used to process and review information may have a direct impact on whether opposing parties are inclined to cooperate. This keen insight, one that is rarely recognized, is pivotal in considering how the costs and burdens of eDiscovery can be reduced by greater cooperation between parties—if they feel confident that they have the information needed to negotiate discovery wisely.
OK, full disclosure: Rubin happens to cite H5’s rules-based TAR process, with its proven accuracy, inherent transparency, and reliance on human discourse, as an example of an approach that is conducive to enriched communication among parties, thereby making cooperation more achievable.
His description and analysis of H5’s process, illustrated by an enlightening hypothetical about a pharmaceutical matter, leads him to the conclusion (one that we can verify) that the iterative searches H5 performs as part of our rules-based process and the information we’re able to share with clients early on about potentially responsive information can lead to a productive dialogue between parties. With better cooperation, especially in the early stages of discovery, the search for information can be refined, reducing false starts and uncovering relevant information quickly without the need to dredge through and argue about the peripheral material that doesn’t matter. You get to what’s important faster, saving time and money for both parties in the process.
Although eDiscovery is sometimes by design a costly sparring match between parties rather than a more earnest quest to ascertain the facts, the contentious model is becoming too costly to sustain. It’s becoming risky, too, as the courts are showing less and less tolerance for it. There may be, by necessity, plenty of “negotiation” between parties during the discovery process, but it can only help to have access early on to information that can lead to the kind of cooperation that will make a difference. Rubin’s assessment about how H5’s TAR approach leads to that outcome is right on point, and we sure don’t mind him saying so.
Read Rubin’s post, Minds Matter: H5, Rules-Based TAR and Cooperation and let us know what you think: Does the TAR method used have an effect on cooperation?